Unfair Dismissal: Employee Loses After Soliciting Clients

Sep 16, 2013
Reading Time: 3 minutes
Written by Dominic Woolrych

Employees can get themselves into all sorts of trouble through the misuse of social media in the workplace. But is social media really to blame? Not in all cases – as this cautionary tale illustrates. The Fair Work Commission recently rejected an unfair dismissal claim from an employee who used LinkedIn to solicit work for his own private business. The employee showed that he had disclosed to his employer, an architectural design practice, that he did small design projects for private clients outside his normal working hours. The employer had accepted this. The employee then decided he wanted to expand his own private business. So he sent out a LinkedIn message to his LinkedIn contacts advising them of his intention to expand his business to a full-time practice. One of the LinkedIn contacts who received this message – who also happened to be a client of the employer’s – was concerned by this and contacted the employer. The employer summarily dismissed the employee for sending the message and breaching his employment contract.

Read your employment contract carefully before hitting ‘send’

The employee argued that his employer knew about the design work he carried on in his private time. He also argued that this private work did not pose a threat to his employer’s business because he did not have the capacity to compete for work of the same scope or scale. The employee insisted that his LinkedIn message was for the good of his employer too, because he intended to pass on any work that he could not handle himself. The employer argued that this was a clear breach of the terms of his contract which prohibited the employee from engaging in any activity that competes with, or adversely affects, the employer’s business or could hinder the performance of the employee’s duties. The Fair Work Commissioner agreed with the employer: While the employer accepted the employee would do small jobs outside business hours, what the employee now intended was something different altogether. The employee’s message was that he wanted to build up a full-time business, and he considered “no project too big or small”. The Commissioner found that the employee breached his employment contract as well as his obligations to put the interests of his employer above his own.

Social media makes it easy…to get caught

At the heart of this case is dismissal involving a conflict of interest. If instead of broadcasting his message on LinkedIn, the employee had emailed or simply telephoned a few clients, the result should have been exactly the same. So why focus on the social networking site used by the employer? Social media is proving to be an interesting magnifier of behaviour related to the workplace. It is a magnifier in two senses: It draws greater attention to behaviour, and it broadens the impact of that behaviour. As we have discussed in our other articles on similar topics, social media is also blurring the lines between private and workplace interests. It is expanding the capacity of individuals to communicate to a broader audience. It is also increasing the probability of getting caught, if in breach of workplace policies.

For these reasons, we are likely to see more cases like this one.

Andrew Gordon, Solicitor, BlandsLaw

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