The Social Court of Palma de Mallorca, has declared appropriate the dismissal of a worker who published inappropriate comments on his Facebook account. Although the comments were deleted by the social network, there was no profit of the worker, nor economic damage to the company; it is considered that the duties of loyalty and fidelity, implicit in the worker’s employment relationship with the company, have been breached. In addition, it is irrelevant for the breach of the facts, that they occurred outside the hours and the workplace.
The worker, identifying himself on the social network Facebook as an employee of the company, published on Facebook some images that the social network itself deleted because it considered them inappropriate and understood that they are contrary to the dignity of people. As a consequence of these publications, a group of users posted comments requesting that the products of the company for which this worker provided services not be consumed.
The company,considering that this conduct, disseminated on Facebook with publications and images contrary to the dignity of people, offensive, defamatory and humiliating; and aware of the movement of rejection that had originated in social networks against her, seriously affecting her reputation; proceeds to the disciplinary dismissal of the worker,considering that it is a very serious breach of his labor obligations.
For his part, the worker,dissatisfied, files a dismissal claim against the company considering it as inadmissible.
The company has a policy of use of social networks in which good practices are established and its employees are urged to ensure that, in their virtual activity, the dignity of the person and that of the workers is respected.
The question to be debated in this case is to assess whether the worker’s conduct is sufficient to justify a disciplinary dismissal. Freedom of expression must be weighed against respect for dignity to deduce whether the company has been harmed, or not.
In the case prosecuted, the dismissal letter accurately sets out the facts and refers to the internal regulations according to which workers must act without offense or attacks on the dignity of persons. when they identify themselves as employees of the company. It is understood that these offensive or degrading comments are not protected by the right to freedom of expression, so they are punishable.
Likewise, for the consideration of a serious and culpable breach, it is inconsequential whether or not the existence of a personal profit is proven to the plaintiff, nor having caused damage to the company, since the breach of the duties of fidelity and loyalty implicit in any employment relationship is sufficient for this. Nor is it necessary that it be repeated conduct or repeated acts.
In addition, the doctrine of the Supreme Council establishes the possibility for a company to adopt disciplinary measures despite the fact that the worker is neither on time nor in the workplace. This means that, outside the working day, there is no absolute freedom to carry out actions that are to the detriment of the company, since all of them are in some way linked to the employment relationship as they result, directly or indirectly, in damage to the company.
In short, what has occurred is a contractual breach consisting of disobedience with an obvious and notorious damage to the company, as well as the loss of confidence in the person of the worker. For all these reasons, the dismissal is declared admissibility and the claim is dismissed.
Use of Social Networks and possibility of dismissal
Depending on the social network and the use that has been given to it, we can find different judgments and judicial pronouncements that have occurred in our country in recent years. Some of them, we expose them below:
Case 1 – Superior Tribune of Justice of Asturias (2013)
- The origin of a dismissal for carrying out certain activities is recognized, while the worker was in a situation of Temporary Disability, proven through the use of photographs posted on the worker’s own Facebook wall.
- In this case, the privacy of the worker has not been violated since the photographs have been obtained directly on the social network, without the need to use any password or password to access.
Case 2 – Superior Tribune of Justice of Andalusia (2014)
- It is recognized as appropriate the disciplinary dismissal of a worker for insults against the company or against other employees in a public manner and with a clear vocation of knowledge on the part of the personnel of the company.
- Even if the opinions are disseminated from outside the company’s premises and using a personal computer owned by the employee, and not by the company.
Case 3 – Superior Tribune of Justice of Catalonia (2017)
- The origin of the disciplinary dismissal of the representative of the trade union section for imputing on Facebook, which is publicly accessible, is recognized; conduct to the company which, if it existed, would have criminal repercussions.
Case 4 – Social Court of Palma (2018)
- The origin of a dismissal for publishing, identifying as an employee of the company, comments on social networks is recognized. Constituting a serious and guilty indiscipline or disobedience. Considering irrelevant the absence of a profit motive, damage to the company or that the events occurred outside the time and place of work.
Case 1 – Superior Tribune of Justice of Galicia (2015)
- The dismissal of a worker in a probationary period communicated by Whastapp is considered valid.
Case 2 – Superior Court of Justice of Madrid (2015)
- The resignation of a worker presented through the Whatsapp application is considered valid, since the rest of the facts are deduced from the unequivocal will to break the employment relationship.
Case 3 – Superior Tribune of Justice of the Basque Country (2014)
- It is admitted as documentary evidence, the examination of whatsapp messages of the mobile phone.
Case 1 – Superior Court of Justice of Asturias (2013)
- It is recognized as appropriate the dismissal of those who, repeatedly, from their computer, in the workplace, during the working day and through the company’s Wi-Fi network, circumventing the security devices of the wireless network; access numerous websites to download files and movies, to watch during working hours. And it also makes use of the social network Twitter with pejorative content for the Company, managers and customers, while demonstrating a totally contemptuous behavior of their work activity.
Case 2 – Superior Court of Justice of Navarre (2014)
- It is recognized as inappropriate, as disproportionate, the dismissal of a worker who makes gratuitous and harmful statements on twitter for the image and reputation of a company, when the irregularity imputed to the worker does not occur within the scope of his own professional function, and the tweets of the worker do not become known to the general public, there is no personal profit, nor is the damage accredited.
Don’t go over Facebook
Let’s put ourselves in a situation. One of the employees of your company is a regular user of social networks, and his profile states that he is a worker of the company. Is there a possibility to regulate the use of social networks by employees?
Your company has the possibility to limit the use of computer tools provided to employees, sanctioning inappropriate use.
Now, can you monitor the activity of your employees on social networks when they identify themselves as employees of your company?
Activities in Social Networks that affect the company
If an employee uses his account on a social network to insult or make degrading comments about the company, its directors or his colleagues; there is a possibility of firing him. In this sense, using the content of the social network (published by the worker himself) as a means of proof, does not violate the privacy of the offender.
If the worker publishes truthful information and does not use insulting or offensive expressions, it will be more difficult to dismiss him, because in these cases his freedom of expression prevails. Thus, if an employee posts on his Facebook account that there is a lack of personnel to carry out an activity, or expresses a position against the company in a conflict situation, there would be no reason to justify a disciplinary dismissal.
When opinions are given on social networks
Freedom of expression – It may happen, however, that an employee pours personal opinions into a social network or in a chat, and that the company considers that such opinions harm the company. You must verify that the employee is making use of their freedom of expression or is exceeding this right:
- You will not be able to fire him if he publishes on his profile his affinity towards a certain political, ideological or religious option.
- On the other hand, if his opinions violate public order (calls for violence, racism and xenophobia, dissemination of totalitarian or fascist ideologies, or that make apology for certain ideologies …), yes you can fire him; but only to the extent that such opinions may be related to the company and damage its image or reputation.
Some tips: social networks and workers
To avoid conflicts in Social Networks, we recommend establishing a clear policy for the use of social networks, so that, respecting the privacy of employees, they comply with the following guidelines:
- Participation in the networks will always be done in a personal capacity (unless the company authorizes it to be done on their behalf). If what they post has to do with their activity, they should indicate that “the comments and opinions are strictly personal.”
- If they identify themselves as employees of your company, they must adopt a position in accordance with the one they usually maintain with their customers and collaborators, and consistent with the position they hold in the company.
- They must respect laws and rights, especially those related to intellectual property and data protection. You should warn that opinions contrary to public order will not be tolerated.
- Remind your employees to publish rumors or internal and confidential information of the company or its customers, suppliers or collaborators; it is negative for the image of the business, and that you can sanction these actions.
- If the employee makes use of his freedom of expression, he cannot be punished. But you can do it if the employee exceeds that right and his conduct affects the reputation, image or confidentiality of your company.