Fair Work Australia ('FWA') recently dismissed a claim made by an employee who believed he had been sacked unfairly as a result of posting an abusive and offensive comment on his private Facebook page about his employer.

The facts

Damien O'Keefe was employed by a company trading as 'The Good Guys' for about a period of four years. At the time of his termination he was employed to repair computer equipment. His pay package included a commission structure.

On 20 May 2010, the employee (Mr O'Keefe) noticed that there were outstanding payments that were due to him that had not yet been paid. Mr O'Keefe said that he had spoken about his pay issues many times with Ms Taylor (Operations Manager) and was angry about the errors that had occurred.

After work, Mr O'Keefe 'aired his frustrations' by posting the following  comment on his Facebook page from his home computer. It read:

Damien O'Keefe 'wonders how the f**k work can be so f*****g useless and mess up my pay again. C**ts are going down tomorrow.'

Mr O'Keefe had 11 colleagues from his workplace as 'friends on Facebook' who were able to view the comment he had posted. As a result, it was not long before Ms Taylor (the colleague the comment was directed to) although not his 'friend on Facebook' found out about what he had posted.

On 21 May 2010, Mr O'Keefe upon returning to work spoke with the Franchise Director, Mr Troy Williams. Mr O'Keefe confirmed that the comment was made and that it was directed to Ms Taylor. In response Mr Williams said: 'I am taking it you resigned. You can't work here – you made threats against us.' The employee responded by saying that he had not resigned and had no intention to. Accordingly, he was summarily dismissed for serious misconduct.

FWA agreed with The Good Guys and said that 'the employee's actions amounted to serious misconduct and that it was difficult to accept that [he] was unaware of the consequences of his actions.' The Good Guys had an employee handbook which stated the following':

'In communicating with other staff, customers and suppliers, employees should be courteous and polite, maintain a high level of honesty and integrity and present themselves and the business professionally. Employees will not use offensive language, resort to personal abuse or threaten or engage in physical contact.'

FWA ruled that even if the handbook did not exist, 'common sense would dictate that one could not write and therefore publish insulting and threatening comments about another employee...the fact that the comments were made on a home computer, out of work hours doesn't make a difference...[as] the separation between home and work is now less pronounced than it once used to be.'

The employee's application for unfair dismissal was unsuccessful. FWA found that:

'Threatening another employee is a serious issue and one which would not be tolerated in any workplace. The manner in which the threat was made and the words used provided sufficient reason for the respondent's dismissal of the applicant on the grounds of serious misconduct.'

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