Unfair Dismissal: Employee Loses After Soliciting Clients

Table of Contents

Share at:

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

Don’t know where to start? Contact us on 1800 529 728 to learn more about customising legal documents and obtaining a fixed-fee quote from Australia’s largest lawyer marketplace.

Share at:

Simplify creating legal documents today

Browse through Lawpath's AI tools which can be used to draft, review and refine legal documents today!

Related Articles

Is it Legal for Employees to Work During their Lunch Break?

It's common that an employee will want to work through their lunch break to maximise workflow or to meet a deadline. Read on to find out more.

How to Write a Receipt?

Learn how to write a legally compliant receipt to provide proof of transaction for your customers.

How to Set Up a Holding Company in Australia?

It is important to understand how to set up a holding company if you want to diversify your business across different companies. Read more here.

Using An IP Agreement To Protect Your Business (2026 Update)

An IP Agreement assigns intellectual property from one party to another. Find out how to use one for your business here.

How to Create a Privacy Policy (2026 Update)

A privacy policy informs website users how you will handle their information. Find out how to create a Privacy Policy here.

How do Non-Solicitation Clauses work?

Do you want to know how non-solicitation clauses work? Read our guide to find out when to use this clause and how to protect your business.