Most Read Contributor in Australia, September 2016
Full Bench of Fair Work Australia upholds decision that
a dismissed employee who made 'derogatory and offensive
comments' on Facebook was unfairly dismissed
A truck driver with 22 years employment with an 'extremely
good' record was dismissed by Linfox because of 'serious
misconduct' following complaints about comments made on the
driver's Facebook page about two of the company's
The truck driver, who mistakenly believed his Facebook account
was set to the highest available privacy settings and that the
comments could only be seen by his 170 friends (many of which were
also employees of the company), had material on his wall which
a remark that his manager, who was a practising Muslim, was a
uncomplimentary material about Linfox managers; and
comments of a sexual nature posted about a female manager.
In agreeing with Commissioner Roberts' (who first heard the
matter) decision that the conduct amounted to serious misconduct,
the full bench stated that in considering whether the posting of
derogatory, offensive and discriminatory statement or comments
about employees on Facebook provided a valid reason for
termination, an enquiry into the nature of the comments and the
width of their publications is necessary.
The full bench noted that Facebook conversations left permanent
written records which might easily be forwarded onto others, the
effect of which widens the audience beyond the author's
friends. Despite the width of the publications, the bench agreed
that objectively considered in their proper context, they were not
of such a serious or extreme nature that would justify dismissal
for serious misconduct. The full bench agreed that:
many of the comments on the driver's wall were made by
fellow employees rather than the driver;
comments had a characteristic of "friends trying to outdo
one another in being outrageous";
some comments were either exaggerated, stupid or an attempt at
humour and could not have constituted a genuine threat against the
although made in poor taste, the driver's comments were not
racially derogatory and were not intended to be hurtful.
In addition, the full bench agreed that the termination was also
"harsh, unjust or unreasonable" for the purposes of
s385(b) of the Fair Work Act 2009. Whilst the termination was
procedurally fair, in that the driver was afforded a support person
to be present at the time of termination and was given an
opportunity to respond, consideration was not had for the length of
service of the driver, his age, his excellent record with the
company, or his misapprehension of the privacy settings of his
The fact that the company failed to take actions against any of
the other employees who also made comments on the driver's wall
also weighed towards a finding of unreasonableness.
In handing down their judgment, full bench cautioned that
Facebook savvy users may not be able to rely on similar arguments
of ignorance of their Facebook's settings, stating:
...with increased use and understanding about Facebook in
the community and the adoption by more employers of social
networking policies, some of [the mitigating factors] may be given
less weight in future cases.
Linfox did not have policy on the use of social media by
employees. Businesses can help prevent contentious and complex
claims in this area by ensuring that their social media policies
are sufficiently detailed so employees can understand what an
acceptable use of social media both inside and outside of the
Linfox Australia Pty Ltd v Glen Stutsel  FWAFB
For further judicial consideration in unfair dismissal cases
involving social media please see:
O'Keefe v Williams Muir's Pty Limited T/A Troy
Williams The Good Guys  FWA 5311
Dover-Ray v Real Insurance Pty Ltd  FWA
Fitzgerald v Dianna Smith t/as Escape Hair Design
 FWA 7358
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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.
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