SINGH V AEROCARE FLIGHT SUPPORT PTY LTD  FWC
A decision by the Fair Work Commission (FWC)
has outlined the potential pitfalls of an employee making public
comments on Facebook outside of work hours – but has also
highlighted the importance of an employer properly investigating
the context of an employee's comments – and the dangers
of jumping to a conclusion.
Mr Nirmal Singh was a baggage handler employed on a casual basis
by Aerocare Flight Support, an aviation ground handling and
services company. Crucially, Mr Singh possessed an Airport Security
Identification Card and was authorised to work within the
restricted security-sensitive areas of Perth Airport.
Mr Singh was dismissed by Aerocare after his co-workers
discovered a series of Facebook posts made by Mr Singh that, on
their face, may have appeared to indicate he held radical views. In
one particular post, Mr Singh linked to an article posted by an
Australian Islamic group and included his own commentary, being the
words "We all support ISIS."
Before his employment was terminated, Mr Singh attended a
meeting with Aerocare management who alleged that his Facebook
posts were contrary to the Aerocare social media policy and, given
the nature of his job, potentially represented a security risk. Mr
Singh asserted that the posts had been sarcastic, that he was
opposed to ISIS and extremism, and he was sorry that his posts had
That meeting was adjourned to allow Aerocare to review their
notes and consider Mr Singh's explanation. Approximately 10
minutes later, the meeting recommenced and Mr Singh was informed
that he would not be offered any further shifts and his employment
was effectively terminated.
Mr Singh subsequently made an application to the FWC for unfair
In its decision, the FWC confirmed that Mr Singh's post was
in breach of Aerocare's social media policy. It stated that
"[it is not] acceptable for employees in the relevant airport
environment to post what appears to be support for a terrorist
organisation and explain it away as sarcasm, comedy or satire. Mr
Singh did a very stupid thing." The FWC also stated that if Mr
Singh had in fact confirmed that he was a supporter of ISIS, it
would have no hesitation in finding that the Facebook post was a
valid reason for dismissal.
However, the FWC also observed that:
It was unsatisfactory that Aerocare had failed to properly
investigate the complete newsfeed of Mr Singh's Facebook
account. If time and attention had been taken to review the
newsfeed, Aerocare would have discovered that Mr Singh was not, in
fact, a supporter of ISIS.
Mr Singh could have been invited to explain his recent Facebook
posts to Aerocare, which would have taken no more than 1-2 hours.
Such an explanation would have satisfied Aerocare that Mr Singh was
not an ISIS supporter. He was not invited to do so.
The 10 minute break during the disciplinary meeting was not
satisfactory, as it was impossible during that time for Aerocare to
have adequately considered all of the issues discussed in the
It would have been appropriate for Aerocare to have continued
Mr Singh's suspension, which would have allowed management to
fully consider the issues and to make further inquiries with
respect to Mr Singh's Facebook account.
Prior to the meeting, Aerocare decision makers had closed their
minds to any explanation from Mr Singh, and they had not considered
any sanction other than terminating his employment.
Given the above, the FWC found that there was no valid reason
for Mr Singh's termination and his claim for unfair dismissal
was upheld. Mr Singh was awarded compensation the equivalent of 8
weeks' pay, however that amount was reduced by 40% because of
Mr Singh's misconduct in breaching Aerocare's social media
This matter highlights the importance of fully investigating any
seemingly improper comments made by employees online and in social
media. Given that sarcasm and satire can be difficult to detect in
text-based communication, it is crucial to investigate the context
in which those comments are made.
Further, when considering whether an employee's conduct
warrants dismissal, it is imperative that an employer takes the
time to fully consider any explanation provided by the employee and
whether there are any alternative sanctions, other than dismissal,
that might be appropriate. Failure to do so may unnecessarily
expose the employer to a claim for unfair dismissal.
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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