Planking is one of the newest challenges facing employers. It
involves a person lying face down on an object, taking a photograph
of the stunt and then uploading it to social media sites.
The fad received global publicity recently, when two Australian
workers were dismissed by Santos for planking on two smoke stacks
60 metres in the air at their refinery in South Australia.
The Santos incident follows a number of dismissals where
employees have photographed themselves planking on the job.
Recently, eight Woolworths employees were dismissed after
photographs were published online of the employees lying on top of
meat grinders, display shelves, trolleys and stacks of milk crates
while at work.
This act of planking can raise a range of issues for employers,
particularly in relation to workplace safety and out of hours use
of social media.
The role of social media in planking complicates the issue, with
a question arising as to whether the social media aspect makes the
act of planking an 'after hours' activity.
In Fitzgerald v Smith t/as Escape Hair Design, the
tribunal stated that, in order to terminate an employee for their
after hours conduct, an employer must establish that the conduct
complained of is sufficiently connected with the relationship of
employment and gives rise to vicarious liability.
An employer will be justified in terminating an employee for
after hours activities where the conduct 'is likely to cause
serious damage to the relationship between the employer and
employee; or the conduct damages the employer's interests; or
the conduct is incompatible with the employee's duty as an
This suggests that there may be a distinction between people who
plank on the premises of their workplace during work hours, then
upload the photos to social media sites, and people who plank
outside the hours of work and not on the premises.
While planking may endanger the safety of employees in the
workplace, procedural fairness must be afforded to those involved.
In Woolworths v Brown, a Full Bench of the AIRC warned
that, even where a breach of policy provides a valid reason for
dismissal, it is well established that the dismissal may
nevertheless be harsh, unjust or unreasonable because:
The employee may establish ignorance of the policy
Termination of employment may be found to be a disproportionate
response to the breach having regard to its nature and the
employee's length of service and prior history
The evidence may disclose that the policy is being applied in a
discriminatory fashion or is used as a pretence to disguise a real
reason that is impermissible. For example, union membership.
That said, issues regarding safety will be given importance.
Foggo C in Peluso v Cadbury Schweppes Limited
'There is nothing more
important than the safety of employees and the employee's
responsibility to look after themselves and to expand that
responsibility to others... if I thought that [the applicant]
wilfully ignored what [his employer] said and was reinstated I
would not want to be responsible for 'looking after' an
employee who is a danger to work with and I put it no more plainly
Lessons for employers
Dealing with planking is a current and complex issue. Where it
involves serious safety issues it can constitute a valid reason for
dismissal so long as it is harsh, unjust or unreasonable in the
In particular, employers should:
Conduct a reasonable investigation to determine what
circumstances are relevant to the determination of the outcome
Notify employees as to the specific reason for dismissal
Show or fully describe to employees the evidence on which the
decision is to be made
Give employees a fair opportunity to respond to the allegation
Allow employees to have a support person present at any
discussions in relation to dismissal
Take into account any mitigating factors, including work
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.
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