Can an employee's strongly worded status update on Facebook repudiate his or her employment contract?
Take two. Could the update be evidence of an employee's unwillingness to perform contractual obligations, so serious as to give the employer a right to terminate the employee? A fuller definition of repudiation appears in the endnote below.
Certainly, Facebook content is increasingly cited in court cases, including in divorce and employment disputes. Posts have been used as evidence to justify termination of employees.
But could a status update, post or comment repudiate a contract, not just put it at risk?
Here's a case that answers the repudiation question. It illustrates what not to do if your pay slip is messed up. It is the 26 May 2011 decision of Mr Damian O'Keefe v Williams Muir's Pty Limited T/A troy Williams The Good Guys (U2010/887).
Facts - Facebook status update
In this case Mr Damian O'Keefe sued for unfair dismissal under section 394 of the Fair Work Act 2009.
O'Keefe was upset that his pay slip had been messed up. A key fact was that in May 2010 O'Keefe wrote a status update on Facebook (expletives abbreviated):
"Damien O'Keefe wonders how the f— work can be so f—ing useless and mess up my pay again. C_ ts are going down tomorrow."
On the day of submitting this status update O'Keefe was contacted by his Area Manager who told him that a director of the employer was taking the comments as O'Keefe's letter of resignation.
O'Keefe's evidence was that he replied to this saying he was not resigning.
Another key fact in the case was that the employer's evidence was that it took the status update as a direct threat to its female operations manager responsible for processing pay.
Some days later a letter of termination was received by O'Keefe and he was paid 3 weeks notice and annual leave payments.
The Employee Handbook was submitted into evidence. While not regarding the existence of the Handbook as essential, Deputy President Swan of Fair Work Australia stated:
"In communicating with other staff, customers and suppliers employees should be courteous and polite, maintain a high level of honesty and integrity and present themselves and the business professionally. Employees will not use offensive language, resort to personal abuse or threaten or engage in physical contact."
Decision - contract repudiation
In paragraph 44 of the decision the case becomes relevant to the concept of repudiation in contract law. There Swan states: "I have accepted that the applicant's conduct was repudiatory conduct which amounted to serious misconduct."
This conclusion was reached despite O'Keefe's evidence that he had maximum privacy settings on Facebook and only a select group of friends (70 people). However, Swan states: "Under cross-examination, the applicant stated that there were probably 11 co-workers in his select group of friends who arguably would have seen the entry posted on his Facebook page on the 20 May 2010."
Deciding that O'Keefe's Facebook status update conduct was repudiatory, made it easier to dismiss O'Keefe's unfair dismissal claim. Fair Work Australia decided in favour of the employer, Williams The Good Guys.
Thus a very strongly worded Facebook status update can be legally read as conduct in repudiation of an employment contract, and if the facts are there, other types of contracts too.
The O'Keefe decision is relevant to the law of unfair dismissal in employment law. More interestingly it is a case on the concept of repudiation which applies to all types of contracts.
The first meaning of the term repudiation provided in the Butterworths Australian Legal Dictionary (Sydney, 2007) is:
"1. An absence of readiness or willingness to perform contractual obligations by the promisor, sufficiently serious to give the promisee a right to terminate (repudiation of obligation). Repudiation may be express or implied: Braidotti v Queensland City Properties Ltd (1991) 172 CLR 293..." "1. An absence of readiness or willingness to perform contractual obligations by the promisor, sufficiently serious to give the promisee a right to terminate (repudiation of obligation). Repudiation may be express or implied: Braidotti v Queensland City Properties Ltd (1991) 172 CLR 293..."