Unfair Dismissal applications involving Facebook have become increasingly frequent with the rapid proliferation of social media and networking. In a recent Facebook dismissal case, the tribunal commented that "postings on Facebook and the general use of social networking sites by individuals to display their displeasure with their employer or a co-worker are becoming more common".

There are now several high-profile cases where the Fair Work Commission has considered whether it is unfair to dismiss an employee because of what they have posted to Facebook and what is 'private' in the digital age. Those decisions provide valuable guidance on how the Commission deals with this rapidly evolving space.

Glen Stutsel v Linfox

At the time of his dismissal in 2011, Mr Stutsel had been employed by Linfox for over 22 years without blemish as a truck driver. He was summarily dismissed for posting racially derogatory, sexually harassing and threatening comments about two of his managers on Facebook.

Mr Stutsel claimed that he thought his Facebook page, which was set up members of his family, had the maximum privacy settings and his posts were private. Stutsel said he did not know how to manage the content of the page, nor how to determine who was able to access his posts.

Whilst agreeing that the content was "distasteful", Commissioner Roberts held that the dismissal was unfair and ordered that Mr Stutsel be reinstated. The Commissioner took into account a range of factors including, that the employer did not have a policy regarding the use of social media, the different treatment of other employees who made similarly inappropriate comments on the the Facebook page, the employees limited understanding of Facebook privacy and content management, his unblemished record, his age and his future employment prospects.

Linfox appealed the decision. In dismissing the appeal, Fair Work Australia said:

"In ordinary discourse there is much discussion about what happens in our work lives and the people involved. In this regard we are mindful of the need not to impose unrealistic standards of behaviour and discourse about such matters or to ignore the realities of workplaces...In the present matter the Commissioner considered that the statements and comments made by the Applicant were distasteful. However when viewed in the context of the Facebook conversations he considered that they were not of such a nature as to warrant dismissal...Some of the comments were so exaggerated or stupid as not to amount to any credible threat against the managers. Others comments were not of such a serious nature as was contended by the Company. Furthermore, some of the comments were not made by the Applicant but by his Facebook friends."

Sally-Anne Fitzgerald v Escape Hair Design

Ms Fitzgerald was dismissed from her position as a hairdresser at Escape Hair Design in 2010 when her employer became aware that she had posted the following on her Facebook page:

"Xmas bonus along side a job warning. Followed by no holiday pay!!! Whoooo! The Hairdressing Industry Rocks man!!! AWESOME!!!"

Whilst acknowledging that employers can terminate an employee for out of hours of conduct where there is sufficient nexus between the conduct and the employment relationship, Commissioner Michelle Bissett held that the dismissal was unfair. The Commissioner took into account that the salon was not named or otherwise identified, that Ms Fitzgerald's page was private and only viewable by her friends and that Ms Fitzgerald was never asked to remove the post.

In finding the dismissal to be harsh, unjust and unreasonable, Commissioner Bissett awarded Ms Fitzgerald $2340 in compensation with a warning that "it would be foolish of employees to think they may say as they wish on their Facebook page with total immunity from any consequences."

Escape Hair Designs appealed the decision without success.

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