Fair Work Australia ('FWA') recently
dismissed a claim made by an employee who believed he had been
sacked unfairly as a result of posting an abusive and offensive
comment on his private Facebook page about his employer.
Damien O'Keefe was employed by a company trading as 'The
Good Guys' for about a period of four years. At the time of his
termination he was employed to repair computer equipment. His pay
package included a commission structure.
On 20 May 2010, the employee (Mr O'Keefe)
noticed that there were outstanding payments that were due to him
that had not yet been paid. Mr O'Keefe said that he had spoken
about his pay issues many times with Ms Taylor (Operations
Manager) and was angry about the errors that had
After work, Mr O'Keefe 'aired his frustrations' by
posting the following comment on his Facebook page from his
home computer. It read:
Damien O'Keefe 'wonders how the f**k work can be so
f*****g useless and mess up my pay again. C**ts are going down
Mr O'Keefe had 11 colleagues from his workplace as
'friends on Facebook' who were able to view the comment he
had posted. As a result, it was not long before Ms Taylor (the
colleague the comment was directed to) although not his 'friend
on Facebook' found out about what he had posted.
On 21 May 2010, Mr O'Keefe upon returning to work spoke with
the Franchise Director, Mr Troy Williams. Mr O'Keefe confirmed
that the comment was made and that it was directed to Ms Taylor. In
response Mr Williams said: 'I am taking it you resigned.
You can't work here – you made threats against
us.' The employee responded by saying that he had not
resigned and had no intention to. Accordingly, he was summarily
dismissed for serious misconduct.
FWA agreed with The Good Guys and said that 'the
employee's actions amounted to serious misconduct and that it
was difficult to accept that [he] was unaware of the consequences
of his actions.' The Good Guys had an employee handbook which
stated the following':
'In communicating with other staff, customers and
suppliers, employees should be courteous and polite, maintain a
high level of honesty and integrity and present themselves and the
business professionally. Employees will not use offensive language,
resort to personal abuse or threaten or engage in physical
FWA ruled that even if the handbook did not exist, 'common
sense would dictate that one could not write and therefore publish
insulting and threatening comments about another employee...the
fact that the comments were made on a home computer, out of work
hours doesn't make a difference...[as] the separation between
home and work is now less pronounced than it once used to
The employee's application for unfair dismissal was
unsuccessful. FWA found that:
'Threatening another employee is a serious issue and one
which would not be tolerated in any workplace.The manner
in which the threat was made and the words used provided sufficient
reason for the respondent'sdismissal of the applicant
on the grounds of serious misconduct.'
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).