Australia: Was it unfair dismissal to sack an employee for breaching the social media policy? Which case won?

Last Updated: 4 December 2019
Article by Geoff Baldwin

The Facts

Airport employee dismissed for breach of social media policy

A man had been employed by a company for about fifteen months when he was dismissed for an alleged breach of the company's social media policy.

The company ran a substantial operation providing logistics services and support to Australian airports. These services included baggage handling. The employee worked at an international airport in an Australian capital city.

Employee's Facebook page created under an alias

The applicant was an enthusiastic Facebook poster, who said that he usually made a dozen or more posts daily. His Facebook page was created under an alias.

Although he used an alias, one word in the name was the same as a word in his own name, and he used his own photo. Among his postings were a couple which came to the attention of two of his supervisors, who were friends with him on Facebook.

Employee's colleagues refer disturbing Facebook posts to management

The supervisors referred the postings to the management of the company. A total of five postings were initially relied on by the company as reasons for dismissing the employee, but the most prominent was one in which he had shared a news report of killings by the Islamic terrorist group ISIS, with a comment "we all support ISIS".

The company suspended the employee with pay on becoming aware of the posts. It also notified the Australian Federal Police and assigned one of its HR employees to investigate its concerns. The employee was interviewed twice as part of these investigations.

Employee dismissed and lodges unfair dismissal claim with Fair Work Commission

The company took the view that the employee's Facebook posts were in breach of its social media policy and reflected adversely on its reputation. At the end of the second meeting, the employee was advised that he would not be offered any further shifts, effectively entailing his dismissal.

The employee lodged an unfair dismissal claim with the Fair Work Commission, which had to decide whether or not his sacking did indeed constitute unfair dismissal.

case a - The case for the employee

case b - The case for the company

  • None of my social media posts mentioned my employer, the airport where I worked or the aviation industry. There was no connection whatsoever between my private social media comments and my employment.
  • The Facebook page where I made the posts was set up under an alias, not my real name. This makes it even less likely that my comments would have been associated with my employer.
  • Some of the posts were merely sharing publicly available news items.
  • When I made the comment about ISIS, I was being sarcastic. This would have been clear to anyone who read back through my earlier posts.
  • Just because two of my colleagues were concerned by my social media postings does not mean that I was in breach the company's social media policy. I have a right to comment on political issues of interest to me in my private time.
  • I have been denied natural justice. The "investigation" that the company supposedly conducted was a sham, designed only to create the appearance of a fair process. In fact, my dismissal was a foregone conclusion.
  • I have had an unblemished employment record up to this point and the commission should find that I was unfairly dismissed.
  • On commencing employment with us, the employee was provided with extensive training on security and airport safety. He was similarly aware of the company's social media policy.
  • Under the Aviation Transport Security Regulations 2005, it is an offence to make a threat about aviation security. It is no defence to say that a comment was sarcastic or a joke. The employee was aware of this.
  • The articles shared on social media by the employee purport to support organisations that have engaged in recognised terrorist activities, including the targeting of passenger aircraft. The employee's postings constituted a counter-terrorism concern and a security risk.
  • While the employee's Facebook page was created under an alias, he used his own photo, so he was clearly identifiable as the author of the postings.
  • The employee offered no adequate explanation as to why he was accessing radical political websites, or "liking", "sharing" or commenting on the posts from these websites on social media accounts which were linked to other employees of the company.
  • The employee offered no response to concerns expressed by his co-workers and by management about the nature of his postings, which had the potential to harm the company, particularly given that he worked in baggage handling, with its obvious vulnerability to bomb attacks.
  • Our concern over the employee's social media posts was a valid reason for his dismissal. It was not a disproportionate response and the commission should find that he was not unfairly dismissed.

So, which case won?

Cast your judgment below to find out

Geoff Baldwin
Employment law
Stacks Champion

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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