Hasty dismissal of employees in the age of social media – A Pandora’s box…

Symmetra has been delivering Unconscious Bias workshops and collecting data from executives and managers globally on impact of biased decision-making for several years.

Accordingly, we at Symmetra can readily endorse a recent article from the McKinsey Group – ‘Are you ready to Decide?’ (April, 2015) – reiterating that many bad decisions “are caused by cognitive or behavioural biases”. The authors of the McKinsey article contend, persuasively, that debiasing techniques built into the process of decision-taking are the most effective way of overcoming bias. Their technique proceeds in two stages:

Firstly:   decision –makers must examine the sources of assumptions and opinions: are they sufficiently broad-based and diverse to counteract a single-minded narrow view of the problem?

Secondly:   Whether the full range of potential negative outcomes has been taken into account.

An area which bears considering is that of employee dismissals and terminations. Risk arises when managers take the view that employees have used social media inappropriately and they are convinced that an employer response is called for with minimum delay. Precipitous decisions often result in bad outcomes following dismissals as in many other business situations.

A Real Life Illustration:

On Anzac day (April 25th 2015, a Saturday), sports journalist Scott McIntyre employed by SBS television posted some controversial tweets about the Anzacs on his private twitter account which to many Australians  were distasteful and were more than a little offensive.

Two Examples of his tweets:
“The cultification of an imperialist invasion of a foreign nation…”  and 

“summary execution widespread rape and theft committed by these ‘brave’ Anzacs… “

By the end of the following day, April 26th, Mr McIntyre had been summarily dismissed. On the 18th May, it was reported that Mr. McIntyre had lodged an adverse action claim with the Fair Work Commission, claiming he was unlawfully dismissed because he had expressed a political opinion.  He also claimed apparently, that he had been unfairly dismissed because proper dismissal procedures had not been followed.

Applying McKinsey’s guidelines in the McIntyre situation we subject the dismissal to the two-step process that the authors advocate.

Step 1

Q. Would a dismissal run counter to Mr McIntyre’s freedom of speech?

A. There is no absolute constitutional right of freedom of speech in Australia, However, in Australia as in other democratic countries it is generally accepted that people can express themselves as they please as long as they do not break the law on vilification or incite others to break the law in some way or are personally abusive. Managers need to understand that a dismissal may be regarded as unfair and therefore unlawful if it is harsh unjust or unreasonable This means both that it must be procedurally fair and the offence committed by the employee must justify a dismissal.  Every tweet, email or facebook posting that managers or executives find offensive must be measured against these yardsticks.

Q. How would a manager know if an opinion is, in fact, a ‘political opinion’?

A.  From the legal perspective there is no clear boundary as to what is ‘political opinion, ‘Clearly ‘political opinion’ in the discrimination provisions of the Fair Work Act goes beyond membership of or promoting the policy of a particular political party or even advocating a particular ideology such as communism or socialism. Tweets supporting trade union activity; taxation reform; use of renewable energy and so forth might be classed as political opinion. Impulsive dismissals on any of the discriminatory grounds could well result in unwelcome legal action.
Does it make a difference that Mr. McIntyre was using his private twitter account?
A. Possibly – where an employee makes derogatory tweets or comments on Facebook about their employer or the circumstances make it likely that the employer’s reputation or commercial interests will suffer or where the tweets and comments break the law then the employer is entitled to take disciplinary action against the employee. However there comes a point where the employee’s comments are simply his or her private opinion and not the business of the employer. The employer then intervenes at its peril.
Q. Can seriously offensive tweets or emails justify a summary dismissal?
A. Summary dismissals are usually reserved for the most serious cases where the evidence is reasonably clear and the employee’s unacceptable actions go to the heart of the employment contract. The mere fact that an employee is in breach of a company policy will not of itself justify a summary dismissal where no damage is done to the employer. It is usually safest to follow the principles of natural justice and allow the employee to be heard.

Step 2

Q. What are the potential downsides of a badly-considered dismissal?
A. Internal – There are costs in money and time to the organisation when dealing with protracted litigation. There is also a potential problem of decline of morale in remaining staff members, when dismissals occur. Finally, employees may start suspecting that the company is regularly trawling through private Facebook, twitter and Instagram accounts to search for damaging or embarrassing material

External – There is the potential for damage in the eyes of the public, particularly when the organisation is high –profile. There is also the risk that prospective employees might think twice before joining a company where there has been a high-publicity dismissal.

Conclusion: The constantly changing face of the workplace and the blurring of the dividing lines between work times and spaces and those which are private create new challenges for managers.

Managers need to be made aware through appropriate training of the hazards of rapid-fire responses, personal biases and taking sole responsibility for decisions without having all the information available.

Organisations need to understand how biases impact on all manner of decisions and institutionalise and systematise checks and balances when decisions can cause unforseen damage.

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