The Full Bench of Fair Work Australia (FWA) has upheld the reinstatement of an employee who was terminated for posting offensive comments about his managers on Facebook.
The employee was dismissed after he posted comments on Facebook about two of his managers that were ‘offensive, derogatory and discriminatory, and included suggestions of dishonest and underhanded conduct, and comments of sexual misconduct’. He had some 170 Facebook friends who could see the comments, many of whom were also Linfox employees.
FWA held that the employee’s actions did not amount to serious misconduct, and that the termination of his employment was harsh, unjust and unreasonable.
Linfox appealed FWA’s decision on several grounds. The Full Bench granted permission to hear Linfox’s appeal, due to the importance of clarifying issues regarding use by employees of social networks, in the context of their employment obligations.
However, the appeal was dismissed, with the Full Bench finding that the FWA’s decision at first instance was reasonably open.
The Full Bench noted that a posting on Facebook may provide a valid reason for termination, but each case will depend on the nature of the comments and the width of their publication.
The Full Bench found that FWA’s conclusion that the comments did not amount to serious misconduct was reasonably open, especially considering:
- some comments were made not by the employee but by his Facebook friends; and
- some were ‘so exaggerated or stupid as not to amount to any credible threat’.
It followed that the Full Bench considered there was no valid reason for termination.
Even if a valid reason for dismissal had been established, the Full Bench considered that termination was harsh, unjust or unreasonable, because of the employee’s:
- belief he was using Facebook’s maximum privacy settings;
- long employment with Linfox (21 years); and
- regret over his behaviour.
In addition, the comments were made outside the workplace, and other Linfox employees who had participated in the online conversation were not subjected to disciplinary action.
The Full Bench also upheld FWA’s order for reinstatement, finding the conduct the employee had engaged in was not so destructive of the employment relationship that reinstatement was inappropriate.
The Full Bench’s decision is a reminder to employers that derogatory or insulting comments by employees made outside the work setting in online posts may not amount to conduct justifying dismissal.
The decision places the onus on employers to educate employees about their expectations regarding the use of social networks, or face the risk that employees will use ignorance of these as a basis to excuse inappropriate online posts. Development of a social media policy is a desirable step in communicating an employer’s expectations.
For further information on the Emplyment Law matters, please contact our Principal Solicitor, Mr George Hanna on (02) 9587 0458 during business hours.