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Australia – Dismissal For Offensive, Derogatory Facebook Comments: Unfair.

6 October, 2012

 

Legal News & Analysis – Asia Pacific – Australia – Labour & Employment

 

Linfox Australia Pty Ltd v Glen Stutsel [2012] FWAFB 7097

 

In brief

 

  • A Full Bench of Fair Work Australia 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.
  • The decision of the Full Bench in Linfox Australia Pty Ltd v Glen Stutsel provides guidance on the interaction between employee use of social media and the employment relationship.

 

Decision at first instance

 

Glen Stutsel had been employed by Linfox as a truck driver for more than 20 years. Linfox terminated his employment in May 2011 for serious misconduct on the basis of offensive, derogatory and discriminatory posts on his Facebook page regarding two Linfox managers. The comments 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, the Tribunal accepted Mr Stutsel’s evidence that his wife and daughter had set up his Facebook account and that he believed the account had been set on the maximum privacy settings available with only his 170 or so “friends” able to see his comments (many of these 170 “friends” were Linfox employees). Commissioner Roberts also accepted Mr Stutsel’s evidence that he was unaware that he could delete comments made by his Facebook friends once they had been posted.

 

At first instance Commissioner Roberts held that although the comments made by Mr Stutsel could be described as being “in poor taste” and “disgusting”, viewed in the context of an online Facebook conversation, the comments were not of such a nature as to constitute a valid reason for dismissal or serious misconduct. Commissioner Roberts likened the conversation 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”.

 

Two other factors appear to have been considered relevant in Commissioner Roberts’ decision: first, Linfox did not have a policy on the use of social media that made explicitly clear the employee’s conduct was contrary to Linfox’s expectations, and secondly, the employee was technically inexperienced with Facebook and the management of his page.

 

Commissioner Roberts held the dismissal was harsh, unjust or unreasonable. Linfox appealed.

 

The “intersection” of social media and employment 

 

In seeking permission to appeal, Linfox argued it was in the public interest for a Full Bench to consider and determine the “intersection” between employment obligations and employee conduct on social media. By granting permission to appeal, the Full Bench has acknowledged the increasing importance of managing social media issues in the context of the employment relationship.

 

Whilst this decision is limited to the particular facts, the Full Bench has signalled that there will be a time when the Tribunal will no longer accept ignorance or naivety as excuses for the inappropriate use of social media by employees.

 

Was there a valid reason for termination?

 

Despite granting permission to appeal, the Full Bench did not find error in Commissioner Roberts’ decision to warrant appellate intervention. The Full Bench did, however, caution that “the posting of derogatory, offensive and discriminatory statements or comments about managers or other employees on Facebook might provide a valid reason for termination of employment”. The Full Bench pointed out that the nature of the comments made and the width of their publication would be relevant to the enquiry of whether such conduct formed a valid reason for termination.

 

“…Facebook conversations leave a permanent written record of statements and comments made by the participants” – Full Bench

 

The Full Bench also rejected Commissioner Roberts’ pub conversation analogy, finding that 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, and are able to be “read at any time into the future”. The Full Bench warned that “employees should exercise considerable care in using social networking sites in making comments or conducting conversations about their managers and fellow employees”.

 

Was the termination harsh, unjust or unreasonable?

 

The Full Bench agreed with Commissioner Roberts’ finding that the termination was harsh, unjust or unreasonable, even if there had been a finding that the postings on the Facebook page were valid reasons for termination. This was because of Mr Stutsel’s long period of satisfactory employment with Linfox, his employment prospects and his age. Importantly, whilst the Bench did not disturb the weight Commissioner Roberts gave to Mr Stutsel’s limited understanding about the use of his Facebook page, it warned that “with increased use and understanding about Facebook in the community and the adoption by more employers of social networking policies, some of these factors may be given less weight in future cases.”

 

As further mitigation, the Full Bench accepted that Mr Stutsel never intended his managers to see the Facebook posts, that the conduct was outside of work and outside of hours, that some of the comments were not made by Mr Stutsel and that Mr Stutsel appeared remorseful.

 

Despite acknowledging that the postings were “appropriately a matter for concern and censure” and were “childish and objectionable”, the Full Bench held that they were, objectively considered in their proper context, “not of such a serious or extreme nature as would justify dismissal for serious misconduct”.

 

The Full Bench upheld the Commissioner’s decision to reinstate Mr Stutsel finding that there had been no breakdown in the relationship between Mr Stutsel and Linfox that would make reinstatement inappropriate.

 

Lessons

 

With the increasing blurring of the line between what is private and what is public on social media, this decision highlights the importance of an employer putting in place and enforcing social media policies that clarify what an employer considers crosses the line in an employment related social media context. In particular, the decision highlights that:

 

  • An employee’s conduct online, where sufficiently connected to their employment, is capable of constituting a valid reason for dismissal.
  • The Tribunal has indicated that its tolerance for the kind of arguments about naivety about social media used by the employee in this case will be given less weight in the future as widespread understanding of the use of social media increases and it is increasingly apparent that inappropriate use of social media may have employment consequences. This is not unlike the situation some years ago when employers started to implement and enforce strong policies prohibiting the sending and viewing of pornography at work. While there was a transitional period where more latitude may have been given to dismissed employees who pointed to the previous workplace culture which tolerated such behaviour, these arguments ultimately had a limited life span and are generally no longer accepted.
  • Derogatory comments on social networking sites that are directed at an employee or manager and that have been widely circulated in the workplace will be more likely to constitute a valid reason for termination than if such comments are shared in a private conversation between a few workmates.
  • Employers, particularly those with a social media presence, should develop workplace social media policies defining what conduct they consider unacceptable for their employees to engage in on social media (where connected with their employment).
  • Such policies should emphasise the employee’s obligation, as a subscriber, to become acquainted and familiar with the technical aspects of their participation in social media, namely, their responsibility to implement appropriate privacy and security settings.
  • Employers should ensure employees have a level of understanding in respect of the relationship between social media sites and their employment.

 

 

For further information, please contact:

 
Michael Tamvakologos, Partner, Ashurst

 

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