Australia: New school technology, old school principles: process still fundamental in social media age

Employers might be tempted to judge and respond with equal speed to an employee's social media post, but they must remember the aphorism "act in haste, repent at leisure".

With the relative novelty of platforms such as Facebook, there is a temptation to treat unfair dismissal cases dealing with social media as in a special category. While these cases do have some of their own characteristics, old school fundamental notions such as procedural fairness nevertheless remain at the heart of such decisions.

An illustration of this is the recent Fair Work Commission case of Colby Somogyi v LED Technologies Pty Ltd [2017] FWC 1966.

As often happens with decisions relating to social media, this case has attracted considerable media attention. Some of the reports of this case have focused on the prurient nature of the Facebook posts concerned, but glossed over the procedural considerations that actually led to the outcome.

The Facebook post

Mr Somogyi worked for the employer as a merchandiser/company representative for just over 13 months, with his employment ending on 24 August 2016.

He was summarily dismissed for serious misconduct arising from a statement he posted on his personal Facebook page.

The post in question was crude and colourful to say the least (and not for those easily offended):

"I don't have time for people's arrogance. And you're not always right! your position is useless, you don't do anything all day how much of the bosses (sic) c*** did you suck to get were (sic) you are?".

This post led to the summary termination of Mr Somogyi's employment. He commenced unfair dismissal proceedings against the employer, with the Fair Work Commission finding that the termination was harsh and unreasonable.

Prima facie, it's difficult to reconcile the crudity of the post, which ostensibly seems directed at the employer and/or its staff, with the result in the decision. On closer examination, however, the decision is not a condonation of crudity but rather an affirmation of the importance of procedural fairness.

Employer sees the post

The Managing Director of the employer rang Mr Somogyi soon after the post was made and, in a brief telephone call which lasted around a minute, told Mr Somogyi to "return all company property to the office".

When Mr Somogyi asked why he was told, "it doesn't matter, you're fired". The telephone call then ended.

The employer submitted it had a valid reason to dismiss the employment having regard to the offensive nature of the Facebook post. It also submitted the post was made during work time.

There is an interesting twist in this case. It was Mr Somogyi's submission that the post had nothing to do with the employer or any of its staff, but actually related to his mother's employment situation.

The offending post was only up for about five minutes, after which time Mr Somogyi replaced it with a post in the following terms:

"Let's Reword my last status so there is no miss-understanding (sic)...
My Poor mum;
Her arrogant boss is bullying her and miss treating (sic) her everyday at work he is trying to push her out of the company, because there is a new girl and she is sucking/f****** the boss. this new girl has got into my mums (sic) position by being a whore. She comes home most nights upset and a few night (sic) she is crying her eyes out.
She needs to speak to someone or fair work i think but she won't listen to me.
I am sick of pathetic people's arrogance and all the bull**** that people do to others for no reason." (The expletives appeared uncensored in the post.)

The employer contended that the fact this new post was made so soon after the original post was a realisation that the original post was offensive and needed to be removed. Mr Somogyi responded that the new post was merely to clarify that the original post had nothing to do with his employer.

Mr Somogyi also argued that the original post was posted while he was on a break at work and was only noticed because other staff of the employer were looking at the Facebook page during work hours. In any event, he rejected the employer's submission that he had been informed of the employer's social media policy, which contains a prohibition on improper or "time wasting" social media use at work.

In a fatal blow to the employer's case, the Commission found that while the original post was "offensive", "vulgar" and "crude and immature", there was no evidence to suggest that it was directed at the employer or any of its employees, and as such there was no valid reason for the termination.

The weakness in the employer's defence was not confined to this. The Commission also found:

  • while the original post used robust language similar language appears to have been used in the workplace of the employer;
  • Mr Somogyi had his employment terminated by way of a very brief telephone call and was apparently not provided with a reason for termination at that time of dismissal;
  • the brevity of the telephone conversation meant that Mr Somogyi did not have an opportunity to respond or put his case in any way before his dismissal.

The employee was not seeking reinstatement (which was also opposed by the employer) and was awarded compensation of $6,238 (less taxation).

Emotional posts, emotional reactions

The immediacy and accessibility of social media facilitates the unfiltered expressions of emotion. As an employer, while it is tempting to judge and respond with the alacrity for which social media is notorious, it is better to keep the aphorism "act in haste, repent at leisure" in mind.

Employers who become aware of a problematic social media post and are considering disciplinary action should:

  • take a screenshot or other permanent record of the post;
  • gather other evidence relating to the circumstances of the post (which may involve undertaking an investigation);
  • ensure the employee is given a proper chance to respond to any allegations;
  • carefully consider any response given by the employee, including credible alternative interpretations of the offending post ;
  • if disciplinary action is taken, ensure it is proportionate and defensible. Don't let emotion or morality cloud objective analysis.

RELATED KNOWLEDGE

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.