This very informative article can be found at: http://www.mondaq.com/article.asp?articleid=823786&email_access=on
I have reproduced it here for your convenience.
Employers beware: If you can’t say anything nice, don’t say anything at all
Over the last few years we have seen a significant spike in defamation litigation, much of which seems to have been prompted by careless comments made either via email or on social media platforms. One recent example which demonstrates the risk within an employment law context is the case of Bowden v KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig & Chapman  NSWDC 98 (4 April 2019).
Matthew Bowden, the Plaintiff in this matter, worked for the Hubba Bubba Childcare Centre in Chatswood. He was a young employee, in his first childcare job, working part time while studying to attain his childcare qualifications. Ms Chapman, the Director and Manager of the centre and one of the Defendants in this matter, became difficult when Mr Bowden could not work the hours that she requested of him due to his study commitments.
As a result of Ms Chapman’s difficult behaviour, Mr Bowden reluctantly gave notice and resigned from his employment – although prior to the notice period coming to an end, Ms Chapman had Mr Bowden escorted from the premises, in front of a group of parents.
Soon after this incident, Ms Champan emailed 35 parents, saying:
“Matt – is unfortunately no longer with us due to disciplinary reasons. Whilst being good with children in general, Matt was not truthful with us regarding his studies and some other issues and I thought it was better for him to move on and possibly gain a bit more life experience”.
Mr Bowden became aware of the email sent to parents, and was deeply hurt by the negative comments, which the District Court subsequently found to be entirely untrue: Mr Bowden had not misled Ms Chapman about his qualifications, and there had been no valid disciplinary reasons for his departure.
Mr Bowden sued Ms Chapman for defamation and won. Ms Chapman was an evasive and argumentative witness, which undoubtedly damaged her credibility. It was noted by the court that Ms Chapman had withheld payment due to Mr Bowden for wages and his notice period, and that she had also pursued him, without good grounds, for a negative review of the centre which she speculated that he had posted to Google. In addition, Ms Chapman had refused to apologise for the defamatory emails when asked to do so.
The court found that Mr Bowden had not been dismissed for dishonesty, but that he had in fact resigned. Similarly, it was found that he had not been dishonest, and that he had not been given any opportunity to respond to the alleged dishonesty.
In circumstances where it was quite possible for an early apology to have avoided the whole case, Mr Bowden was awarded damages and interest of more than $230,000, plus legal costs for an 11-day hearing.
In my opinion, it would’ve been wise for Ms Chapman to heed the old adage of good manners: “If you can’t say anything nice, then don’t say anything at all”. Sending a defamatory message by email or social media vastly increases the risk of a claim, and provides concrete evidence of both what was said, and how widely it was communicated.
Even when providing a reference, with a much more limited circulation, it is wise for employers to be circumspect and factual in what they say, and not take the opportunity to vent.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:
- General HR and IR advisory service.
- Fair Work Commission representation (eg unfair dismissals, adverse actions, etc.).
- Workplace investigations and mediations.
- Policies and procedures.
- Discipline & Termination.
- People Audits (are you at risk of prosecution?).
- Enterprise Agreements, Contracts of Employment, Individual Flexibility Agreements.
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Contact Greg on 0438 906 050 or mailto: email@example.com.