Australia: Absent social media policy stings transport giant

Linfox Australia Pty Ltd v Glen Stutsel [2012] FWAFB 7097

The Full Bench of Fair Work Australia has recently dismissed an appeal by an employer (Linfox) against a decision to reinstate an employee who the Tribunal found to have been unfairly dismissed for what Linfox deemed to be inappropriate social media use.

The employee, a truck driver with Linfox for over 20 years, was terminated from his employment in May 2011. Linfox terminated the employee for serious misconduct, primarily, for offensive, derogatory and discriminatory posts on his Facebook page, concerning two Linfox managers. The comments included references targeted to one manager's religious beliefs, whilst other comments were of a sexual nature regarding one of the female managers.

The Tribunal's decision

At first instance, Commissioner Roberts accepted evidence that the employee's wife and daughter had set up his Facebook account and he believed that the maximum privacy settings had been engaged, with only 170 of his "Facebook friends" able to see his comments. Many of the 170 "friends" were employees of Linfox.

The employee also gave evidence, which was accepted by the Commissioner, that he was unaware that he could remove comments by other people on his page. In this instance, other "friends" had made offensive and inappropriate comments regarding one of the managers.

The Commissioner ultimately found the following:

  • the comments, although distasteful, were intended for a private forum;
  • the comments, although distasteful, were intended for a private forum;
  • the comments, when read in sequence, could be compared to a group of friends having a conversation in a pub or café;
  • the comments concerning one of the mangers were made by other Linfox employees, not the employee dismissed;
  • Linfox did not have a social media policy and consequently, induction and training material could not be relied upon as a basis for the action taken.

The dismissal was held to be unfair on the basis that it was harsh, unjust or unreasonable.

Linfox appealed the decision of Commissioner Roberts.

The Appeal

Linfox argued that it was in the public interest for the Full Bench to consider and determine the intersection between employment obligations and employee conduct on social media.

Despite the fact that the Full Bench ultimately did not find fault with Commissioner Roberts' decision, it was noted that there will come a time when ignorance will no longer be accepted as an excuse for inappropriate use of social media in the workplace.

The Full Bench also pointed out that "the posting of derogatory, offensive and discriminatory statements or comments about managers or other employees on Facebook might provide a valid reason for termination of employment".

It was also raised that other employees who had made comments of a similar nature on the employee's Facebook page had not been disciplined.

Harsh, unjust or unreasonable?

The Full Bench concurred with Commissioner Roberts' findings that the termination was harsh, unjust or unreasonable. This was the case even if there had been a finding that the postings formed a valid reason for termination.

Factors considered were the employee's unblemished employment record, his age and future employment prospects. However, the Full Bench specifically stated that with the growing trend of social media use in the community, and more employers utilising social media policies, the weight the Tribunal will give in relation to the employee's lack of understanding about the use sites such as Facebook may be significantly less in the future.

Social media policies

With the increased use of social media and the difficulty in discerning what is private and what is public, this decision by the Full Bench exemplifies the importance of organisations adopting a social media policy, which clarifies what the employer considers to be appropriate and inappropriate conduct on social media.

However, a policy without adequate communication and training is almost as useless as not having a policy at all. Employers should be educating their staff in respect of the relationship between their social media usage and their employment. Employees should be aware of conduct deemed to be unacceptable by their employer.

In the matter of Linfox v Stutsel, it is likely that the case would have been determined very differently if Linfox had a social media policy in place and its employees had been educated about how the policy was to be viewed and followed. Instead, Linfox was ordered to reinstate the employee and to pay compensation for his lost wages.

Madgwicks recommends that all employers, large or small, implement a social media policy, which is properly communicated to employees, including appropriate training where necessary.

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. Madgwicks is a member of Meritas, one of the world's largest law firm alliances.

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