What does it mean for my employer to give procedural fairness?
Procedural fairness broadly relates to the decision-making process followed or
You should be very proactive in minimising the damage which you might have done to your own future. If the information is harmful to your employer, misleading or open to misinterpretation, do whatever you can to take it down.
Secondly, take advice about the particular consequences that might be facing you because in many employment situations you will be dismissed for misconduct and have little recourse to law as a matter of practical consequence.
It is fair to say that the law expects that if you have a complaint you will find the right channels to follow. These channels include making a formal complaint to the Victorian Human Rights and Equal Opportunity Commission, a grievance complaint if you have an enterprise agreement, or under the policies and procedures of the company if the company has grievance procedures which you are meant to follow. It is a serious error to malign others on the internet. You may have a valid point to make but it will be likely to be lost if you have done something which seriously undermines your employer’s business.
The internet is becoming increasingly onerous for employees. Gone are the days when an employee was safe with comments that they may have made on either personal or public websites. Employees now must be very careful with internet security and to ensure that they do not make disparaging remarks about their employer.
Of particular concern is your Facebook profile, as well as other social media websites such as Twitter, LinkedIn and Whirlpool forums. While you may believe that your personal life is out of bounds to your employer, courts and tribunals are increasingly upholding your employer’s right to maintain their public image and reputation at the expense of your right to privacy.
Modern recruitment practices often include a Google search of prospective employees. If you do not have high level of security on your Facebook account, your prospective employer may be able to view your profile in its entirety. You do not want your employer to see uploaded photographs of your personal life, particularly if those images include photographs out in nightclubs or of yourself excessively drinking with friends. Your future employer may be able to view your status updates or comments that are directed towards your friends, as well as any groups that you may have joined. A comment that you made two years ago is still accessible through cached versions of websites, and you may find that if this information is available to a prospective employer, you may not be offered that job. You may find that a group you joined years ago, such as ‘My Boss is so Annoying’, suddenly results in denied employment opportunities. Even comments or status updates such as ‘I hate my job, I don’t want to go to work tomorrow’ may be seen as inflammatory towards your employer and form grounds for disciplinary proceedings or dismissal.
You may also find that professional websites, such as LinkedIn, may lead you to trouble. Failing to alter your employment status may be misleading or create misrepresentations to anyone who views your profile.
You should not be fooled by thinking that anonymous internet posts, or fake accounts, can protect your employment. It is common for employers to monitor social networking websites and forums to track any negative comments which may harm their brand. You may think that you are bullet proof by using an alter ego to make negative comments about your employer, but tracking of IP addresses may see your disguise exposed.
What is at issue is bringing your employer’s brand, name, business exploits or reputation into disrepute. One current issue for employees is uploading photographs to social media websites which show the employee engaging in misconduct in the workplace, or using company property in an inappropriate way. Planking is a modern phenomenon which may bring trouble to employees. You may be fined for such inappropriate workplace conduct by WorkCover. The Occupational Health and Safety Act 2004 (Vic) requires you to take responsible care of your own, as well as of your work colleagues, in your workplace.
You must be very aware that any of these actions may be characterised as serious misconduct, and be used by your employer as grounds to dismiss you from your job.
There are steps that you can take if your employer seeks to discuss with you any inappropriate use of social networking websites.
Firstly you should make sure that your comments are removed from the internet so that your employer has no ongoing issues with you. This way your employer cannot claim that your comments are continuing to harm its business or reputation. By doing this you are limiting the damage which you may inflict upon your employer.
Your next step should be to write a formal letter to your employer. This letter should state that you attempted to use your employer’s internal mechanisms to have your issues properly dealt with. This letter should also raise the fact that your employer failed or refused to listen to your concerns.
Your employer must not dismiss you from your employment unless it complies with the provisions of the Fair Work Act 2009 (Cth). If you are dismissed and your employer does not comply with this Act, you may be able to claim unfair dismissal and seek a remedy through Fair Work Australia. This process is discussed in more detail elsewhere on this website.
If you have raised your issues through your employer’s internal procedures or any grievance procedure that may be in place, you are in a better position to protect your employment. If your employer failed to act on your concerns and adequately address any issues you have raised, you may have greater protection under the Act to complaint about the unfairness of your dismissal.
You should promptly seek legal advice if you believe that your dismissal from your employment is imminent. This will afford you greater protection and you may be able to retain your job. More likely however is that you will be faced with the option of attempting to negotiate your resignation without the stigma of being dismissed. This is best done by a professional third person. Should you try to negotiate your own departure you will find that your very weak bargaining position will cause your negotiations to fail.