A number of bakers working at the same bakery created a closed chat group on Facebook aiming to communicate about an ongoing illegal strike started by the bakers. However, not all employees at the bakery took part in the strike, which was subject to heavy discussion in the group.
On 23 May 2014, the company became aware that some of the employees who did not participate in the strike felt threatened both verbally and on Facebook. In cooperation with the union representative, the company informed all employees that the threats were denounced and that any threat would lead to immediate dismissal.
A week later, two employees were dismissed because of their remarks in the Facebook chat group. This happened after excerpts from the chat from May 22nd and 23rd, 2014, came to the company's attention.
Threatened with “something other than breadcrumbs in the rasping machine”
One of the dismissed employees had written that there might be a “bad atmosphere” and “would be careful next time I made breadcrumbs; something could easily slip into the rasping machine”.
The other employee wrote “Let them work. Freeze them out later. As long as they do not feel that it will work out for one reason or another….”
The arbitrator: Facebook conversation could not justify dismissal
The arbitrator initially found that the company had a right to react even though the statements were made in a chat group only open for the striking employees.
However, according to the arbitrator, there had not been any threats of physical harm in the chat, which should only be understood as an indication of the social difficulties that the non-striking employees would be exposed to.
Therefore, the arbitrator found that the statements only gave basis for a warning and were not severe enough to justify a dismissal of the two employees, who had never before gotten a warning for bullying or other unbecoming behaviour.
The dismissed employees were awarded compensation of DKK 100,000 each, which was, among other things, determined by seniority and salary as well as the fact that the employees did not get a chance to explain themselves.
iuno’s opinion
The case is interesting because it contributes to the understanding of how the courts asses employees behaviour on Facebook and other social media. The case indicates that companies can use statements from social media as a basis for disciplinary action, even though they were stated in a closed group. However, the statements must have a certain gravity in order to be able to justify dismissal. Case law, in general, shows that the courts often put limited emphasis on the severity of statements in private Facebook conversations, because private Facebook conversations often have a severe tone than non-private conversations.
iuno recommends that companies convene employees for an interview and investigates the circumstances further before employees are being dismissed for severe and inappropriate conversations on Facebook.
[Statement from The Dismissal Tribunal given on the 29 January 2015]