Planking is one of the newest challenges facing employers. It involves a person lying face down on an object, taking a photograph of the stunt and then uploading it to social media sites.
The fad received global publicity recently, when two Australian workers were dismissed by Santos for planking on two smoke stacks 60 metres in the air at their refinery in South Australia.
The Santos incident follows a number of dismissals where employees have photographed themselves planking on the job.
Recently, eight Woolworths employees were dismissed after photographs were published online of the employees lying on top of meat grinders, display shelves, trolleys and stacks of milk crates while at work.
This act of planking can raise a range of issues for employers, particularly in relation to workplace safety and out of hours use of social media.
The role of social media in planking complicates the issue, with a question arising as to whether the social media aspect makes the act of planking an 'after hours' activity.
In Fitzgerald v Smith t/as Escape Hair Design, the tribunal stated that, in order to terminate an employee for their after hours conduct, an employer must establish that the conduct complained of is sufficiently connected with the relationship of employment and gives rise to vicarious liability.
An employer will be justified in terminating an employee for after hours activities where the conduct 'is likely to cause serious damage to the relationship between the employer and employee; or the conduct damages the employer's interests; or the conduct is incompatible with the employee's duty as an employee.'
This suggests that there may be a distinction between people who plank on the premises of their workplace during work hours, then upload the photos to social media sites, and people who plank outside the hours of work and not on the premises.
While planking may endanger the safety of employees in the workplace, procedural fairness must be afforded to those involved.
In Woolworths v Brown, a Full Bench of the AIRC warned that, even where a breach of policy provides a valid reason for dismissal, it is well established that the dismissal may nevertheless be harsh, unjust or unreasonable because:
- The employee may establish ignorance of the policy
- Termination of employment may be found to be a disproportionate response to the breach having regard to its nature and the employee's length of service and prior history
- The evidence may disclose that the policy is being applied in a discriminatory fashion or is used as a pretence to disguise a real reason that is impermissible. For example, union membership.
That said, issues regarding safety will be given importance. Foggo C in Peluso v Cadbury Schweppes Limited stated:
'There is nothing more important than the safety of employees and the employee's responsibility to look after themselves and to expand that responsibility to others... if I thought that [the applicant] wilfully ignored what [his employer] said and was reinstated I would not want to be responsible for 'looking after' an employee who is a danger to work with and I put it no more plainly than that.'
Lessons for employers
Dealing with planking is a current and complex issue. Where it involves serious safety issues it can constitute a valid reason for dismissal so long as it is harsh, unjust or unreasonable in the circumstances.
In particular, employers should:
- Conduct a reasonable investigation to determine what circumstances are relevant to the determination of the outcome
- Notify employees as to the specific reason for dismissal
- Show or fully describe to employees the evidence on which the decision is to be made
- Give employees a fair opportunity to respond to the allegation of misconduct
- Allow employees to have a support person present at any discussions in relation to dismissal
- Take into account any mitigating factors, including work history.
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.