Careless whisper – A lesson on the importance of formal communication structures in the workplace

Clear and effective communication structures are crucial to the smooth running of a workplace. Last-minute meetings and unexpected emergencies (especially safety emergencies) mean that messages and information often need to be relayed to employees almost instantly.

Thankfully, there are numerous ways in which employers are now able to communicate urgent messages to their employees where doing so in person is not practical, including by email, phone call, text message – or even through social media. Delivery of messages through alternative message delivery options does have the potential to result in confusion about what is and what is not an official work-related message. This can be particularly problematic for employers with large workforces across many worksites.

Take, for instance, the recent decision of the Fair Work Commission (FWC) in Waters v Mt Arthur Coal Pty Limited T/A Mt Arthur Coal Pty Limited [2018] FWC 3285. This matter concerned the dismissal of a Production Operator at a coal mine in the Hunter Valley in New South Wales following a Facebook post in which he wrote: “All Xmas and Boxing Day shifts are off for good.”

Following the termination of his employment, the Production Operator lodged an application with the FWC claiming that his dismissal was unfair.

The evidence before the FWC was that, in the lead up to the Christmas and Boxing Day period in 2017, safety concerns had been raised about the mine remaining operational during that period noting that emergency response teams would be scarce around the site. Following completion of a risk assessment and finding a replacement emergency response team, the employer ultimately decided to keep the mine operational on Christmas and Boxing Day. It advised all affected workers accordingly.

The employer was then issued with a direction by an Industry Health and Safety Representative (and employee of the CFMMEU) pursuant to the Work Health and Safety (Mines and Petroleum Sites) Act 2013, which required the employer to suspend mining operations because of safety concerns.

The employer, however, chose to ignore the direction.

The Production Operator was aware that a direction had been issued and, on the assumption that the direction would be complied with, posted the relevant statement on Facebook on Christmas Eve. The post was seen by a number of employees and contract workers who became confused about whether or not they were to attend work the next day.

The post ultimately came to the attention of the mine’s Production Overburden Manager who promptly took steps to contact all relevant employees and contract workers and dispel the rumour that the mine was not going to be operational on Christmas and Boxing Day.

Whilst the post did not result in any employees or contract workers failing to attend for work, the employer considered that the Production Operator’s conduct was in breach of the employer’s Charter of Values as well as rules requiring employees not to distribute material likely to cause annoyance, inconvenience or needless anxiety to their colleagues and not to disclose information to the public unless specifically authorised to do so.

The FWC found these reasons to be valid reasons for dismissal.

In reaching this conclusion, the FWC noted that the Production Operator published the post on Facebook without any knowledge of the actual position of the employer or even seeking clarification from an authorised source. Whilst the FWC accepted that the Production Operator had honestly assumed that the employer would comply with the direction, the fact that the Production Operator did not take any steps to find out from an authorised source whether or not the employer would actually comply with the direction was significant, particularly given that he had limited knowledge of the legislative power to issue the direction.

The FWC also concluded that the Production Operator knew, or ought to have known, that his post would or could be viewed by employees and contract workers and therefore had the potential to disrupt operations, cause confusion and inconvenience others. The post was nonetheless published and represented as if it was an official statement from the employer.

The FWC rejected the Production Operator’s argument that his conduct was an exercise of his rights as an elected Health and Safety Representative (HSR) to act or speak for his work group on matters related to WHS or to communicate information to workers. The FWC clarified that the Work Health and Safety Act 2011 (NSW) did not confer any power or function on HSRs to communicate matters in relation to WHS on social media – particularly when the recipients of such a post include non-workers and the HSR does not ultimately have control over what recipients might do with the post and with whom they might share it.  

The FWC concluded that the gravity of the Production Operator’s conduct warranted dismissal, giving particular weight to the potential for such conduct to affect the employer’s operations at the time.

Lessons for employers

Employers should have clear structures and guidelines in place for the communication of work-related information to employees, for example, that operational matters will be communicated via certain managers or that information will be posted on the employer’s Intranet.

Such guidelines should make particular note that communication via social media about work-related matters is generally not authorised (and could potentially breach employees’ confidentiality obligations).

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.

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