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.

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