On 17 November 2011, the Leuven labour court ruled in favour of the lawful dismissal for serious cause of an employee who posted comments on Facebook about the company he worked for
Previous case-law already exposed that negative remarks directed at the employer can, in certain circumstances, justify dismissal for serious cause. The case at hand concerns, however, comments about a quoted company posted on Facebook by one of its executives (the business development manager). The employee systematically commented on his Facebook page about the state of affairs of the company, including the disappointing results.
The labour court firstly needed to decide whether a Facebook page is protected by privacy regulations. Can an employer simply use messages posted on facebook by an employee as evidence in court?
The employee in question considered that his privacy was violated by the employer and that the employer unlawfully performed an inspection of his internet use without asking his consent. In addition, the employee considered that his Facebook page was only accessible to his friends and friends of his friends.
However, evidence delivered by the employer proved that any Facebook user accessing the employee’s Facebook page could see messages on his “wall”, without necessarily being a “friend” of the employee.
The labour court decided that, given those facts, no privacy violation could have taken place. In addition, the labour court considered that a system allowing friends of friends to connect to a person’s page is full of gaps and uncontrollable to the user whose privacy is therefore never guaranteed.
The labour court also ruled that, if an employee uses a social network site where he publicly declares being employed by a given company, he must abide to e-mail and internet use regulations of this company and respect the privacy of third parties. He is therefore bound to avoid actions and remarks that are disloyal or harmful to the company.
Further, the labour court had to consider the seriousness of the facts and whether they could justify a dismissal for serious cause.
In this case, the labour court decided that, given the executive function of the employee who was supposed to act as a role model and the precarious situation of the company, it was inappropriate for him to make suggestive remarks with explicit references to other decision makers within the company.
This decision demonstrates that an employer is not powerless against statements posted by employees on Facebook or through other public social media channels. Nevertheless, any employer who has introduced a social media policy, which includes clear guidelines regarding the use of social media, is better equipped to prevent or sanction the misuse of social media channels.
