Table of Contents
Derogatory and Offensive Facebook Post v Freedom of Speech
The emergence of social media has blurred the lines between conduct that is deemed within the workplace or outside the workplace. Consequently, many employers have a social media policy in place, which sets out the rules surrounding the use of social media in a personal and professional capacity. In the absence of such a policy, employees can still be fairly dismissed for posts they make on their social media pages if the posts are deemed offensive or disparaging.
Fair Work Commission Case Study
Offensive, Derogatory and Offensive Facebook Post – Is it Unfair Dismissal?
In Glen Stutsel v Linfox Australia Pty Ltd, a Linfox employee was terminated after posting a number of comments on his Facebook page about Linfox, the staff of Linfox generally and, specifically, two of his managers. The privacy settings for the post were such that any person with a Facebook account could view the information on his page. Linfox terminated the Applicant for serious misconduct as they deemed the posts offensive, derogatory and discriminatory, and included suggestions of dishonest and underhanded conduct, and comments of sexual misconduct. Although Linfox did not have a policy on the use of social media by employees, they deemed this conduct sufficiently serious to warrant summary dismissal.
Commissioner Roberts accepted the employee’s evidence that the page was set up by his wife and he understood the privacy settings to be the highest available, the employee believed that his page could only be seen by his Facebook “friends” and he was unaware that he could delete comments posted by other people on his page.
Was the employer right to decide on dismissal?
Despite the controversy surrounding the posts, Commissioner Roberts held there was no valid reason for dismissal. The employee’s comments about terrorism and the death of Osama bin Laden were held to be an expression of his private views, which were not intended to be public and his freedom of speech. It was acknowledged that the employee had a right to free speech, despite it being distasteful, and the comments could not be categorised as a personal attack on his manager. It was also held that the employee referring to his manager as “bacon hater” was not racially derogatory or intended to be hurtful.
Commissioner Ryan held the comments had a flavour of a conversation letting off steam in a café or pub, and, as some of the conversations concerned the employee’s activities as a union delegate, it was not surprising that some of the comments towards the managers were uncomplimentary. Further, the comments of a sexual nature directed towards a fellow employee, although outrageous, were an attempt at humour with no credible threat to the fellow employee’s wellbeing.
Fair Work Commission’s decision
Commissioner Ryan concluded that employee’s dismissal was harsh, unjust and unreasonable in light of his long history of unblemished service and the evidence before the Commission. The employee was reinstated.
Linfox appealed this decision to the Full Bench but the appeal was dismissed as there was no demonstrated error of such significance in the Commissioner’s decision as would warrant interference by an appeal bench. Linfox then appealed the Full Bench decision in the Federal Court of Australia where it was again dismissed.
Although this case was highly controversial, the original decision was upheld and the appeal attempts were all dismissed. Despite the employee admitting to making the posts, there are clearly various factors when determining whether a dismissal is justified. An employee making social media posts regarding terrorism may be considered an expression of a private view, that is within a person’s right to free speech.
Summary
Nevertheless, it is always safer for employees to refrain from posting potentially offensive posts or comments on social media platforms and always consult their employer’s social media policy. In this current electronic age, it is pertinent that employers have published detailed social media policies and taken pains to acquaint their employees with those policies.
It is evident that derogatory or offensive comments are judged on a very fine line and “letting of steam” in a group situation, although conducted in an electronic platform, may mitigate the severity of the actual comments. However, the context and potential damage to the employer’s reputation, are crucial considerations when assessing whether there is a valid reason for dismissal.
Fair Work Commission Case Study
Sacked Over Recommendation on Facebook Post
In Besanko v R.B. Aquatics Pty Ltd T/A Swimmers, a casual swimming instructor was dismissed over a “recommendation” she made in a Facebook post thread. In early January 2021, the Applicant’s colleague was browsing Facebook when she came across a post in which a person had sought recommendations for a swimming school in the area. The colleague posted a recommendation for the Respondent’s business in reply. Having posted a reply to the Facebook post, the colleague then received notifications of all subsequent posts on the same thread. The colleague received a notification that the Applicant had also made a recommendation but for a different swim school in the area. Given this swim school was a competing business, the colleague took a screenshot of the post and forwarded it to their boss.
Was the employer right to decide on dismissal?
The Respondent held a meeting with the Applicant regarding her comment on the Facebook post. The Respondent queried the Applicant as to why she had recommended another swim school in preference to the Respondent. The Applicant explained it was not her intention to damage the Respondent’s business but the Facebook group on which the post was made was identified as being a private group with 16,100 members. The Applicant was terminated as this behaviour was deemed “unsatisfactory and disloyal”, threatening the Respondent’s reputation.
In determining whether the dismissal was fair, Deputy President Masson had to establish whether the dismissal was consistent with the Small Business Fair Dismissal Code. It was held that while describing the behaviour as “unsatisfactory and disloyal”, the Respondent did not identify whether the Applicant’s conduct was contrary to any express or implied duties or obligations owed to the Respondent. Further, it was not contended that the Applicant’s conduct was contrary to any terms of her contract of employment or policies and/or procedures of the Respondent.
Fair Work Commission’s decision
Although Deputy President Masson described the Applicant’s behaviour as “foolish, naive and ill-judged and a regrettable example of an employee using social media without carefully considering the potential consequences for herself or her employer”, she was not satisfied that it was wilful or deliberate in the sense that it was done with the intent or knowledge that it might cause harm to the Respondent.
Deputy President Masson was not satisfied that the conduct was so “grave” or “repugnant” as to be destructive of the employment relationship. Thus, there was no valid reason for dismissal and this was a disproportionate response to a naive and ill-advised social media post that was made without adverse intent towards the Respondent. The dismissal was deemed unjust and unreasonable.
Summary
The key takeaway from this case was that the employee did not disparage or denigrate her employer in the post and there was no evidence that the employer’s business suffered harm or damage. The employee merely made a recommendation, which was not the Respondent, and it is within her right to express her opinion about her recommendations.
Are concerned that you may be or have been unfairly dismissed due your personal social media activity? Reach out to us for a confidential fee free consultation to discuss your options. I am also happy to chat via social media via Instagram or Facebook.
By Gary Pinchen.
A Whole New Approach, we are not lawyers, but the nations leading workplace advisors, I hope this article has been helpful your you. If you have questions about your rights to parental leave, please call us for free, confidential advice.
Give us a call on 1300 766 700.
