Facebook users now surpass 1 billion, including many of
your employees. Everyone's buzzing about social media and
whether an employee can be sacked for what they do there. The
recent Full Bench appeal Linfox Australia Pty Ltd v Glen
Stutsel [2012] FWAFB 7907 has shed some light.
In a nutshell
Linfox claimed that an employee was guilty of serious misconduct
following posting comments on his Facebook page which were
described by Linfox as offensive, discriminatory and
derogatory.
What did he say? Among other things, the employee referred to
his Muslim manager as a "bacon hater"; made comments
about terrorism and the death of a Muslim terrorist; and
participated in "outrageous" banter of a sexual nature
with other employees, about a female manager.
Sounds like conduct justifying dismissal, right?
Nope. The Full Bench upheld the original decision finding that
the conduct did not amount to serious misconduct, and dismissal was
harsh, unjust and unreasonable. The Full Bench also affirmed the
order for reinstatement and back pay.
Why?
The personal circumstances of the employee played a big role.
He'd been with the company for 22 years, had a satisfactory
employment history, and Fair Work Australia (FWA)
took into account his job prospects. Parity of treatment was also
relevant: other employees who posted comments on the same Facebook
page weren't disciplined. Oh, the employee was contrite too,
and regretted the whole episode.
But what did FWA have to say about Facebook postings we hear you
ask? Well:
the employee's age and knowledge of Facebook was taken into
account - his Facebook account was set up by his wife and daughter
and he apparently believed that his settings were set to maximum
privacy settings (they weren't intended to be seen by the
managers). Additionally, he didn't know he could delete his own
posts and the posts of others;
the conduct occurred outside of the workplace and outside of
working hours;
his comments about terrorism were deemed to be a personal
expression.
Ultimately, the Full Bench did say that the posting of
derogatory, offensive and discriminatory statements or comments
about managers or other employees on Facebook
may provide a valid reason for
termination of employment. Just not this time, having regard to
this employee.
We do not disclaim anything about this article. We're
quite proud of it really.
Specific Questions relating to this article should be addressed directly to the author.
A court has determined that an employee had a workplace right under the Fair Work Act 2009 to make a complaint entitling the employee to proceed with her general protections claim.
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