Why you should be reading cases

When I was at law school I was able to cruise by without reading cases. And in fact, that’s a great way to describe my attitude towards my studies: cruise. I wasn’t particularly interested in what I was studying and found it difficult to see how the concepts I was studying translated to real life. That was until I started gaining work experience and I saw first hand how cases and legislation had real world implications on real people. And this is when I began to learn that being able to read case law is so, so important because when you’re going ahead with a matter one of the first things you’ll be asked to do is to find analogous cases.

Being able to read a case and to pick out the most relevant points to you is a skill learned over time. It can’t really be taught and takes a fair amount of practice. Every time I read a case, I learn something new.

Here are the reasons for why you should set aside some time to read cases:

It helps you learn how to communicate like a lawyer

This was the greatest benefit that I gained from reading cases. Every time I read a case, I pick up words to add to my vocabulary, new ideas on how to convey a particular message, and examples on how I should structure my work so my work can be better understood.

It helps you develop your analytical skills

Reading cases means you gain a first-hand insight into the way a judge would analyse a set of facts and apply the law to them. No cheat sheet can do this for you! An added bonus when reading cases is you will also be able to read the dissenting judgment (something study guides and charts often leave out), which can help you gain a more rounded exposure to the issues of the case and give you an idea of the alternative ways you could think about a particular issue.

It’s fun

I’m sensing some scepticism here. But see for yourself: next time you’re at work or just doing some browsing at home and you come across a law news story that’s interesting to you, plug in the party names into a legal database (Austlii is my go-to) and see what you can dig up.

You will never regret extending yourself and learning something new. Personally, I’ve enjoyed the process of learning how to read cases and then applying the knowledge I’ve gained from that process to my work and personal life. You’ll be surprised how often something you’ve learned from a case will just come up in conversation!
I understand you might not have studied law, or just need a refresher on how to approach the task of reading cases: my next blog post will be called “How to Read Cases” and will give you some pointers on where to get started.

Looking forward to seeing you again here on the Workplace Space.

 

Employees and Social Media

In an increasingly connected world, social media blunders committed by employees can have a real impact on the employment relationship. There are situations where an employee’s conduct on social media could constitute a breach of the employment contract and warrant dismissal. The breach must be a breach of the express or implied terms of the employment contract, and must be serious enough to affect the employment relationship in a way that the employer cannot reasonably be expected to have confidence in their employee.

NB: Australian jurisdiction

Connection to work

Relevant to the issue of social media misuse by employees is the issue of out of hours conduct. The test for when an employee’s out of hours conduct is so unacceptable it could give a valid reason for dismissal is set out by Ross VP in Rose v Telstra Corporation Ltd (U No. 20564 of 1998).

The conduct must be, when viewed objectively:

  • likely to cause serious damage to the relationship between the employer and employee; or
  • the conduct damages the employer’s interests; or
  • the conduct is incompatible with the employee’s duty as an employee.

Even where the circumstances fit within the test in Rose, employers must remember the wording of s 385 of the Fair Work Act 2009 (Cth), which states:

A person has been unfairly dismissed if the Fair Work Commission (FWC) is satisfied that the dismissal was harsh, unjust or unreasonable.

In many of the cases I looked into, the FWC determined that the employer had a valid reason for dismissal, but due to a defect in procedure, and/or the harshness of the dismissal all things considered, the dismissal was still considered an unfair dismissal.

Case examples

Cases where employee made outrageous, hurtful or inappropriate comments or posts on social media but dismissal was still unfair:

Case Why dismissal was unfair
Somogyi v LED Technologies [2017] FWC 1966

 

Procedurally unfair: No reasons given for dismissal/ no opportunity to respond
Linfox Australia Pty Ltd v Stutsel [2012] FWAFB 7097

 

Dismissal was harsh: previous good employment record and employee’s lack of awareness on social media privacy settings
Singh v Aerocare Flight Support Pty Ltd [2016] FWC 6186 No valid reason: employee gave an acceptable explanation of the posts, and other posts did not breach SM policy
Remmert v Broken Hill Operations Pty Ltd [2016] FWC 6036

 

Procedurally unfair: other matters influenced the decision maker and were not made known to the employee
Renton v Bendigo Health Care Group [2016] FWC 9089

 

Dismissal was harsh: disproportionate to the conduct
Fitzgerald v Dianna Smith T/A Escape Hair Design [2011] FWAFB 1422

 

No valid reason, no procedural fairness. However, harshness not a consideration as the employee was not able to work as she was incapacitated (psychological harm not related to work). Compensation awarded was therefore limited.

 

Cases where dismissal was not unfair:

Case Why dismissal was not unfair
O’Keefe v William Muir Pty Ltd t/as The Good Guys [2011] FWA 5311

 

The words were a clear threat to other employees constituting repudiation
Dover- Ray v Real Insurance Pty Ltd [2010] FWA 8544

 

Employee refused to follow reasonable direction to remove social media posts

 

After-hours conduct cases

In most of the after-hours conduct cases, dismissal was found to be unfair, even if there was a valid reason for dismissal:

  • Rose v Telstra Corporation Limited (U No. 20564 of 1998
  • Clarkin v Bechtel Construction (Australia) Pty Ltd [2017] FWC 1871
  • Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156
  • Deeth v Milly Hill Pty Ltd [2015] FWC 6422

The only case in relation to out of work conduct where dismissal was not unfair was Kathuria v The Commonwealth [2015] FWC 8553, where largely the employee demonstrated an unwillingness to comply with lawful and reasonable directions.

Summary

Employers must be careful when terminating an employee for misconduct on social media. No matter how outrageous, offensive or potentially damaging to the employer or fellow employees an employee’s social media post may be, an employer must consider:

  • Whether they have a SM policy (Linfox)
  • Whether the SM policy was provided to the employee, and its purpose and application explained (Remmert)
  • Whether the posts could be linked back to the employer and have an adverse affect (Fitzgerald v Escape Hair Design)
  • Whether the employee was afforded procedural fairness (Singh v Aerocare, Somogyi)
  • Whether fellow employees were adversely affected (Renton v Bendigo Health Care, Keenan); and
  • Whether other options to discipline were open to the employer.

Each case turns upon its facts and there is no hard and fast rule on when it is OK to dismiss an employee for a social media post. It is clear, however, that if an employer avoids being hasty, ensures that they have a clear social media policy in place, and the employer follows the principles of procedural fairness they are halfway there to defending an unfair dismissal claim should one arise.

All material is provided for general information and educative purposes. Appropriate legal advice should be obtained for your particular situation. None of the content reflect the views of, or are endorsed by affiliates, employers, colleagues, or associates.

This article is entirely my own opinion, and the first I’ve ever published. If you have comments or critiques, please comment below or email me.

 

My first vlog!

It has been an extremely busy couple of weeks and sadly I let The Workplace Space slide as a priority in my life. I realised last night that I NEED to make it a priority and reminded myself of why I wanted to found WS in the first place: because I love employment law, I love developing my understanding of it, and I would love to share my thoughts with you.

So I threw myself into the deep end and recorded a vlog- I’ve never done one before- just to introduce myself and the Workplace Space and to make myself accountable to my goals.

The next post will be on social media use in the employment relationship. I’ll be looking into some cases where things have gone bottoms up. I’ll coming up with ideas on how I think employers should handle social media, and how employees can keep themselves out of hot water if they’ve made a social media faux pas!

Looking forward to seeing you all again on The Workplace Space!- WS

Welcome

Dear Reader,

Welcome to The Workplace Space! Stay tuned for content on industrial/ workplace/ employment relations, HR issues, management, and employment law. I’m looking forward to sharing my thoughts with you and can’t wait to get a dialogue going on all things employment!

See you soon,

WS