Jurisdiction - Australia
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Australia – Use Of Social Media By Employees.

27 October, 2012

 

Legal News & Analysis – Asia Pacific – Australia – TMT

  

The Full Bench of Fair Work Australia has dismissed an employer's appeal against a decision to reinstate an employee found to be unfairly dismissed for publishing offensive, derogatory and discriminatory comments against managers on his Facebook page: Linfox Australia Pty Ltd v Glen Stutsel [2012] FWAFB 7097. The employee, Mr Stutsel, had been working at the company for 20 years when he posted comments on his Facebook page that included inappropriate references to one manager's religious beliefs and comments of a sexual nature about one of Mr Stutsel's female managers. 

 

At first instance, when finding for the employee Commissioner Roberts likened such comments to "a group of friends letting off steam and trying to outdo one another in being outrageous" and to "a conversation in a pub or café".  Also relevant was the fact that the employer did not have a policy on the use of social media that made explicitly clear that the employee's conduct was contrary to the company's expectations. 

 

Whilst on appeal the Full Court did not agree with Commissioner Robert's pub analogy, stating there is a fundamental difference between Facebook communications and pub conversations between friends, as Facebook communications potentially reach a "wide audience" of readers beyond the control of the initial publisher, it upheld the decision to reinstate Mr Stutsel to his previous position, finding the dismissal unjust and harsh.

 

To view the full decision of the Full Bench of Fair Work Australia: click here.

 

For further information, please contact:

 

Gordon Hughes, Partner, Ashurst

gordon.hughes@ashurst.com 

 

 

 

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