Find out why an employee was terminated and later reinstated after making offensive comments about his managers on Facebook. Does your workplace have adequate social media policies in place for employees - and are these communicated appropriately?
The case between Linfox and its employee Glen Stutsel (which was the subject of a previous newsletter, click here) has gone another step. Linfox appealed against FWA's order reinstating Mr Stutsel.
In the original case, Mr Stutsel had posted offensive comments about two Linfox managers on his Facebook page. He knew little about the privacy settings on his Facebook page, which had been set up by his wife and daughter, and thought he was communicating "privately", something akin to pub or café chat.Unfortunately, other Linfox employees accessed his comments, and the managers concerned were able to access them and he was subsequently dismissed.
Linfox's case for dismissing Mr Stutsel was not helped by the absence of a corporate social media policy which might have given Mr Stutsel guidance as to what was not acceptable. FWA held that some of the Facebook comments were so stupid that they did not amount to any credible threat against the managers, and the employee's 22 years of good service were also taken into account when the original case was heard.
Linfox's Appeal
The appeal decision upheld the order to reinstate Mr Stutsel, finding that the initial decision was not "clearly wrong", even though Mr Stutsel's conduct was described as childish and objectionable and reflecting poorly on those who participated.
The Full Bench noted that if comments were made directly to Managers and other employees, and given wide circulation in the workplace, they would be treated more seriously than comments shared privately by a few workmates in a social setting - which was how the Facebook comments made by Mr Stutsel were viewed.
While, in this particular case, reinstatement was upheld, the Full Bench did sound a warning for others in the future that Facebook conversations are significantly different to pub or café conversations.
The conversation is recorded in writing, permanently, unless the page owner takes it down. The number of people involved is far beyond the four or five people who might be in a group at the pub. For instance, even if the comments were only accessible by Mr Stutsel's 170 Facebook friends, that was a wide audience, and included employees of the company. It was therefore substantially different from a conversation over a beer or a coffee: "Employees should therefore exercise considerable care in using social networking sites when making comments or conducting conversations about their managers and fellow employees".
And as a further warning, the Full Bench said "With increased use and understanding about Facebook in the community and the adoption by more employers of social networking policies, some of [the factors in this case] may be given less weight in future cases. The claim of ignorance on the part of an older worker who had enthusiastically embraced the new social networking media but without fully understanding the implications of its use, might be viewed differently in the future".
What can we learn from this case?
The lessons from this case are:
- As an employer, ensure that you have a social media policy in place and communicate it to your employees!
- As an employee, be circumspect about what you say about managers or colleagues on Facebook and other social media outlets.
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.
