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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.
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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.
