In Linfox Australia Pty Ltd v Glen Stusel (3 October 2012) the Full Bench of Fair Work Australia (FWA) upheld a decision allowing the unfair dismissal claim of an employee accused by managers of posting abusive comments on 'Facebook'.
Linfox dismissed Stusel, a truck driver, following the discovery of comments posted on his Facebook page about the two managers. The comments were alleged to be offensive, derogatory and discriminatory, suggesting dishonest and underhand conduct and sexual misconduct on the part of one or both of the managers.
One of them, whilst not a 'friend' of Stusel, had been able to access his Facebook page and noticed a discussion with another Linfox employee in which Stusel professed admiration for any creature (in this case a bear) which could"...rip (the managers') heads off, shit down their throats and then chew up and spit out their lifeless body!(sic)"
Further objectionable material was found on Stusel's Facebook page, including a suggestion that the female manager provided sexual favours to staff.
Linfox investigated and concluded that the derogatory comments amounted to sexual and racial discrimination and harassment in breach of its equal opportunity and diversity policies. Stusel was dismissed for serious misconduct but paid his contractual notice in view of his 22 years of service.
The Facebook account, which was accessible to 170 'friends' (including employees of Linfox), could also be viewed by the general public.
The Initial Decision
Stusel argued that his Facebook account was initially set up with 'maximum privacy restrictions' and he did not know how it became accessible by the public unless it was as a result of Facebook unilaterally changing its privacy settings in 2010. He denied having made any 'extremely derogatory comments' about his managers but also relied on the International Convention on Civil and Political Rights concerning arbitrary or unlawful interference with correspondence, freedom of thought, the right to hold opinions without interference and the right to freedom of expression.
Linfox argued that Stusel was in breach of the implied duty of good faith and mutual trust and confidence and that the absence of a social media policy did not affect its Workplace Diversity Policy, which entitled staff to the respect and support of their colleagues free from discrimination or harassment. Other provisions included providing a workplace"free from unlawful harassment and discrimination, where employees are not treated differently for reasons that have nothing to do with their ability to perform their job."
Linfox argued that Stusel chose to ignore the policy and proceeded to post material which contained a threat of physical violence, a suggestion that Linfox managers had acted in a dishonest, inappropriate and/or underhanded manner, comments of a sexual nature and comments about one of the mangers' religion and Muslims in general.The conduct, it said, had led to a total breakdown of trust and confidence which justified summary dismissal.
The initial FWA hearing found that:
- Stusel believed his account (set up by his wife and daughter) had the highest available privacy settings and that his comments could only be viewed by his Facebook friends
- His comments about terrorism and the death of a Muslim terrorist were an expression of his private views in a forum that was believed to be private and, whilst in bad taste, were within his right to free speech and could not be characterised as a personal attack on one of his managers (a practising Muslim)
- The reference to his manager as a "bacon hater" was in poor taste but not racially derogatory or intended to be hurtful
- Stusel was a TWU delegate and it was not surprising that some of the material about Linfox managers was uncomplimentary
- The comments of a sexual nature were outrageous but most had been made by others in the conversation
- The 'bear' comments might have been disgusting but were clearly an attempt at humour and did not contain any credible threat to the manager's wellbeing;
FWA noted that Linfox did not at any relevant time have a social media policy forbidding such activity and its reliance on induction and training handbooks was insufficient in the current electronic age. It concluded that Stusel was not guilty of serious misconduct and that his dismissal was harsh, unjust and unreasonable.
Linfox argued that FWA relied on irrelevant considerations, gave insufficient weight to relevant facts, unduly emphasised a purported right to free speech and made errors of fact.
The Full Bench accepted that whilst the posting of such comments might provide a valid reason for dismissal, careful consideration needs to be given to the nature of the comments and the scope of publication. Comments made directly to managers and other employees and given wide circulation in the workplace will be treated differently to comments shared privately by a few workmates in a social setting. Employees will discuss what happens at work and it is important not to impose unrealistic standards of behaviour or to ignore the realities of the workplace.
However, unlike conversations in a pub or cafe, social media comments leave a permanent record which can be read at any time or until taken down by the owner. Employees should therefore exercise considerable care in using social networking sites when making comments about managers and fellow employees.
In deciding whether the dismissal was 'harsh, unjust or unreasonable', FWA took account of Stusel's long period of satisfactory employment, his age and employment prospects, and his (mistaken) belief that his privacy settings meant that his views would be shared only with his Facebook friends and not the managers. In addition, the postings were made away from the workplace and outside working hours and some of the statements were made by others (Stusel was unaware that he could delete comments from friends once they had been posted). Furthermore, Linfox had taken no action against other employees involved.
The Full Bench considered that Linfox had overstated its concerns as to the nature and effect of the postings and had failed to establish any error in the initial decision. The Full Bench accepted that Stusel's (mis)understanding about the use of Facebook was an important factor in concluding that the dismissal was unfair.
Whilst the Full Bench accepted that it was important to clarify the extent to which freedom of speech can be asserted when social networking sites have been used to vilify fellow employees, the decision only goes as far as to suggest that:
- Ignorance may in the short term lead toleniency (particularly where an older worker has enthusiastically embraced new social networking media without fully understanding the implications of its use);
- Leniency may reduce as awareness increases about the use and understanding of social media and as employers increasingly adopt social networking policies.
The drafting, implementation and maintenance of clear and concise social media policies will clearly go a long way to assist in the defence of such claims.
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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