Recent decisions of the Fair Work Commission provide an interesting insight into the approach adopted by the Commission when determining if termination from employment is lawful for making an offensive post on a personal Facebook page.
Case Study 1
The Employee was terminated from his employment with immediate effect for using social media during working hours. The Facebook post read “I don’t have time for people’s arrogance. And your not always right! your position is useless, you don’t do anything all day how much of the bosses cock did you suck to get where you are?”
The Employer submitted that it had a valid reason to dismiss the Employee given the offensive nature of the Facebook post, and the fact it was posted while he was at work. It says the post was directed at the business, or one of its employees, and this was clearly inappropriate. The Employee denied the Facebook post was directed at the Employer or its staff and removed the post shortly after.
The Commission found that the Facebook post was not a valid reason to dismiss the Employee. While concluding that the Facebook post was undoubtedly crude and immature, it found that it used references that are increasingly part of the common vernacular. Importantly, the Commission found that there was no evidence that provides confirmation or even suggests the post was directed at the business or any of its employees.
The Employee was found to have been unfairly dismissed. While the Employee was able to find a job the very next week he argued his new wages were significantly less. He was awarded (6) months compensation for the difference between what he was earning and his new wage being the amount of $6,238.00 less applicable tax. This is an extraordinary amount given the Employee had only been employed for 13 months.
The full decision can be read here.
Case Study 2
The Employee tagged two of his colleagues (a male and a female) in an offensive and sexually explicit video post on Facebook. That same day after posting the video, the Employee also left blobs of sorbolene cream and tissues on the desk of a colleague tagged in the video.
The colleague complained about the two incidents and the Employer dismissed the Employee for serious misconduct. The Employee argued that his dismissal was unfair.
The Commissioner found that the Employee’s conduct extended beyond the private realm into work. He tagged work colleagues and suggested sexual activity had occurred at work between them. It was offensive and those tagged had a right to feel aggrieved at his conduct. He has brought question to the reputation of his employer who has a right to be aggrieved by his actions.
Despite this, the Commissioner said the dismissal was harsh and disproportionate to his misconduct. This was because his conduct was considered an isolated incident, and his employment history was otherwise spotless. The Commission also took into account the Employee's economic and personal circumstances including the special needs of his child. Having found the dismissal to be harsh, it was therefore found that he was unfairly dismissed.
The Employee was awarded compensation of $2,014.89 plus superannuation. Given he had been employed for nearly 18 years, this was a fairly insignificant amount.
The full decision can be read here.
The decisions suggest that a Facebook post must be quite extreme before it is a valid reason for termination. That may be the case, however it also demonstrates that the Commission will look beyond the actual content of the post and consider a wide range of factors in determining if the termination is harsh.
If you are considering terminating your employee for an offensive social media post, call Tony Valentinetti first to discuss how you may effectively manage an employee’s termination and mitigate your risk of an unfair dismissal claim.