Unfair Dismissal applications involving Facebook have become
increasingly frequent with the rapid proliferation of social media
and networking. In a recent Facebook dismissal case, the tribunal
commented that "postings on Facebook and the general use of
social networking sites by individuals to display their displeasure
with their employer or a co-worker are becoming more
There are now several high-profile cases where the Fair Work
Commission has considered whether it is unfair to dismiss an
employee because of what they have posted to Facebook and what is
'private' in the digital age. Those decisions provide
valuable guidance on how the Commission deals with this rapidly
Glen Stutsel v Linfox
At the time of his dismissal in 2011, Mr Stutsel had been
employed by Linfox for over 22 years without blemish as a truck
driver. He was summarily dismissed for posting racially derogatory,
sexually harassing and threatening comments about two of his
managers on Facebook.
Mr Stutsel claimed that he thought his Facebook page, which was
set up members of his family, had the maximum privacy settings and
his posts were private. Stutsel said he did not know how to manage
the content of the page, nor how to determine who was able to
access his posts.
Whilst agreeing that the content was "distasteful",
Commissioner Roberts held that the dismissal was unfair and ordered
that Mr Stutsel be reinstated. The Commissioner took into account a
range of factors including, that the employer did not have a policy
regarding the use of social media, the different treatment of other
employees who made similarly inappropriate comments on the the
Facebook page, the employees limited understanding of Facebook
privacy and content management, his unblemished record, his age and
his future employment prospects.
Linfox appealed the decision. In dismissing the appeal, Fair
Work Australia said:
"In ordinary discourse there is much discussion about
what happens in our work lives and the people involved. In this
regard we are mindful of the need not to impose unrealistic
standards of behaviour and discourse about such matters or to
ignore the realities of workplaces...In the present matter the
Commissioner considered that the statements and comments made by
the Applicant were distasteful. However when viewed in the context
of the Facebook conversations he considered that they were not of
such a nature as to warrant dismissal...Some of the comments were
so exaggerated or stupid as not to amount to any credible threat
against the managers. Others comments were not of such a serious
nature as was contended by the Company. Furthermore, some of the
comments were not made by the Applicant but by his Facebook
Sally-Anne Fitzgerald v Escape Hair Design
Ms Fitzgerald was dismissed from her position as a hairdresser
at Escape Hair Design in 2010 when her employer became aware that
she had posted the following on her Facebook page:
"Xmas bonus along side a job warning. Followed by no
holiday pay!!! Whoooo! The Hairdressing Industry Rocks man!!!
Whilst acknowledging that employers can terminate an employee
for out of hours of conduct where there is sufficient nexus between
the conduct and the employment relationship, Commissioner Michelle
Bissett held that the dismissal was unfair. The Commissioner took
into account that the salon was not named or otherwise identified,
that Ms Fitzgerald's page was private and only viewable by her
friends and that Ms Fitzgerald was never asked to remove the
In finding the dismissal to be harsh, unjust and unreasonable,
Commissioner Bissett awarded Ms Fitzgerald $2340 in compensation
with a warning that "it would be foolish of employees to think
they may say as they wish on their Facebook page with total
immunity from any consequences."
Escape Hair Designs appealed the decision without success.
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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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