Dismissal for Facebook post unfair, but no need for compensation

The Fair Work Commission (FWC) has found a teenage swim instructor who recommended a rival swim school on a community Facebook page engaged in “foolish, naïve and ill-judged” behaviour but could not be persuaded that her conduct was so destructive to the employment relationship that it warranted summary dismissal.   

Deputy President Masson lamented the decision of the casual swim instructor to recommend the competitor swim school – one she had also worked occasionally for – when asked for suggestions on Facebook, commenting it was hard to reconcile her logic, “in circumstances where she had been employed by [‘Swimmers’ swim school] for over 3 years and had been kept ‘on the books’ and paid JobKeeper benefits [by ‘Swimmers’] from April 2020 up to the date of her dismissal”. The Deputy President noted the swim instructor, who typically worked an average of 5.5 hours per fortnight and had earned less than $4000 with ‘Swimmers’ prior to April 2020, received payments exceeding $25,000 between April 2020 and January 2021 as a result of ‘Swimmers’ participation in the JobKeeper wage subsidy scheme for which she was a nominated employee.

Although Deputy President Masson conceded that it “beggars belief that the [swim instructor], who had benefited so significantly from the loyalty shown towards her by [‘Swimmers’] during the Covid pandemic, failed to reciprocate when she recommended another employer who she had barely worked for”, he was unable to conclude the behaviour had been wilful or deliberate, accepting instead that her conduct in recommending the competitor swim school had been “naïve and ill-advised”.

In determining the dismissal constituted a “disproportionate response” to the swim instructor’s comment, Deputy President Masson noted various mitigating factors, including that the instructor had not denigrated ‘Swimmers’ in her post, nor was there any evidence that her comments caused “any harm or damage to its business”. In addition, despite being a small business employer, Deputy President Masson was critical of the manner in which the dismissal was effected by ‘Swimmers’, noting that the decision to terminate her employment had clearly been made before the employer’s concerns were discussed with her.   

Despite finding the dismissal to be unfair, the Deputy President declined to award compensation, as the instructor had earned more (with the rival swim school) since her dismissal than she would have been likely to receive had she remained in employment with ‘Swimmers’ beyond January 2021.

Besanko v R.B. Aquatics Pty Ltd T/A Swimmers [2021] FWC 1952 (26 April 2021)