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9 Oct 12
Dismissal unfair despite offensive Facebook comments

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The Full Bench of Fair Work Australia last week upheld a decision which found that an employee was unfairly dismissed for posting ‘offensive, derogatory and discriminatory statements’ about two of his managers on his Facebook page. Michael Moy, Partner and Peta Shanahan, Lawyer outline the high profile decision in Linfox Australia Pty Ltd v Stutsel [2012] FWAFB 7097 (3 October 2012) and considerations for employers.

The decision highlights the need for employers to effectively implement social networking policies if they wish to regulate online conduct of employees which takes place outside of work hours, such as by way of comments made on social networks about co-workers.

The Full Bench noted that derogatory, discriminatory or offensive comments made about other employees on social networking platforms may provide a valid reason for termination of employment, but made clear that this will not always be the case. Important factors to such decisions include whether the comments were made directly to another employee and the width of their publication. The privacy settings of the user and the inclusion of co-workers within their personal social network will also influence the outcome.

In this case, the employee was a truck driver with 22 years of satisfactory service with Linfox. He was dismissed for serious misconduct on the basis that he had breached the company’s Workplace Diversity Policy after statements were made on his Facebook page. The comments, which were not all made by the employee but appeared as part of a series of conversations on his page, were alleged to be racially derogatory and amount to sexual discrimination and harassment in respect of two of his managers. 

In considering the appeal the Full Bench accepted that:

  • the employee believed that the comments posted on his page could only be viewed by him and his Facebook friends
  • while distasteful and disgusting, the employee’s comments were, variously, within his right to free speech, not a personal attack, not intended to be hurtful, not racially vilifying, intended to be an attempt at humour and did not contain any credible threat to the wellbeing of the two managers
  • other comments, made by co-workers on his Facebook page, were outrageous, but were not made by the employee and he was unaware that he could delete comments made by others on his page, and
  • given that Linfox did not have a social media policy, the various policies and handbooks relied upon by the company were inadequate to justify the employee’s dismissal.

Although the Full Bench agreed that the dismissal was unfair, it rejected the Commissioner’s contentions at first instance that the comments in question had the ‘flavour of a conversation in a pub or cafe’, and instead took the opportunity to warn that the posting of such ‘childish and objectionable’ material on Facebook and in similar forums can form a permanent written record with a wider circulation than so-called ‘pub talk’. In addition, they remarked that those remarks may easily be forwarded to others beyond the control of the original poster, widening their circulation still further.

The Full Bench highlighted the need for employees to take considerable care in their work-related posts and cautioned that, in future cases, an employee’s ignorance of the implications of their Facebook use may be given less weight in determining these matters (particularly as more employers adopt policies in respect of social networking). These comments make it clear that Fair Work Australia will be prepared to hold employees accountable for their work-related conduct on social networking sites. 

Employers should consider implementing clear policies and training regimes regarding use of social networking platforms to ensure that their employees have an understanding of the possible implications of their social network use for their employment and to protect the employer’s ability to take action if breaches of this kind occur.

McCullough Robertson’s Workplace Relations and Safety team regularly advises clients in relation to social networking policies. Contact a member of the team if you require any advice on such policies.

 

Focus covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. Focus is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.

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