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Employment Update – January 2017 – Explicit Facebook content provides valid reason for dismissal, but was termination harsh?

The Fair Work Commission has recently handed down another interesting unfair dismissal decision relating to an employee’s inappropriate use of social media.

Facts

In this case the Applicant posted to his public profile on Facebook a video that showed an obese woman in her underwear dropping her stomach onto the back of a man in his underwear.  He then tagged two of his work colleagues in the post, a male (‘Male Employee’) and a female (‘Female Employee’), and wrote “[Male Employee] getting slammed by [Female Employee] at work yesterday”.

On the same date, the Applicant also left blobs of Sorbolene cream and tissues on the Male Employee’s desk.  The Male Employee said that he took this to suggest that someone had masturbated at his desk.

The Male Employee made a complaint about the conduct on the same day.  He did so after hearing two of his colleagues talking about the Facebook post, which prompted him to take a close look at the post himself.  The Male Employee then called his Business Unit Manager and left a message for her in relation to the Facebook post and the Sorbolene incident.  He later spoke to the manager and told her “he found the post and the video disgusting and that he was angry”.

A few days later, the Applicant was provided with a letter that invited him to discuss the two incidents with the Employer.  He was also asked to refrain from speaking to any of his colleagues about the complaint.  A meeting was subsequently held and the Applicant attended with his union representative.  The Applicant apologised for any offence caused by the post, and said that he and the Male Employee had engaged in similar Facebook posts in the past.  The Applicant said he was surprised that the two other employees were offended by the conduct.

After hearing the Applicant’s response, the employer’s representatives confirmed that one of the outcomes of the meeting could be a recommendation that the Applicant be terminated.  After a short adjournment of the meeting, the employer’s representatives confirmed that they would be recommending to the CEO that the Applicant’s employment be terminated.

In making the recommendation, the employer’s representatives said that they took the following items into account:

  • That the post was offensive and sexual in nature and implicated two employees, suggesting that something had occurred whilst at work;
  • The tagging of the employees in the Facebook post, and the reference to the incident occurring at work, potentially brought the employer’s reputation into disrepute;
  • The Applicant admitted the conduct – and referred to his view that it was a light hearted joke.
  • The Applicant showed little insight into the offensive and inappropriate nature of the post;
  • The employer’s representatives felt that during the meeting, the Applicant was mainly concerned with who dobbed him in.

A representative of the employer called the Applicant to advise of the termination the following day.

Submissions

At the hearing, the Applicant argued that he had tagged his colleagues in the post to “generate humour”.  He said that he had not intended to post something that was sexually explicit and he submitted that when he realised people were offended by the post, he removed it.  He denied that the conduct was a breach of the company’s social media policy or that the post had posed a risk to any person’s health and safety.

The Applicant was critical of the Employer’s process in terms of what he considered was a very short adjournment of the meeting before the decision to recommend termination was made.  He argued that this demonstrated that the Employer had already made the decision to terminate before he had the chance to respond.

He submitted that the decision to terminate was harsh and was disproportionate to his conduct, which he claimed was not serious misconduct.

He claimed that there were other employees that had engaged in similar conduct on Facebook, including the Male Employee, and that they were not subject to disciplinary action.

He sought reinstatement.

The Employer submitted that the Applicant had in fact agreed that the video was sexually explicit and they submitted the Applicant’s written post, which accompanied the video, was at least sexually suggestive.  They pointed out that the post clearly implied the incident occurred at work.

The Employer noted that the test for serious misconduct was whether the conduct “causes serious and imminent risk to health and safety or reputation of the employer”.  The Employer argued that in this case both the Male Employee and the Female Employee were affected by the conduct, with the Female Employee wishing she had the strength to make the complaint (which was made by the Male Employee).  The Male Employee had “sought counselling to deal with the stress of the incident”.  Both employees also took time off after the incident.

The Employer said that their reputation was at risk because of the suggestion that an incident had occurred at work, and because many of the people who saw the post were work colleagues or former work colleagues of those involved.

The Employer expressed that the Applicant was clearly not accepting of the seriousness of the post and that he did not accept that the post could cause offence.

The Employer also submitted that the Applicant’s conduct post termination was a relevant consideration, as it was clear that the Applicant had contacted the Male Employee to try and get him to recant his complaint.  The Applicant also made an extremely inappropriate reference to one of the Employer’s female representatives post termination that showed “deliberate and objective contempt for the management of [the Employer]”.

The Employer also referred to previous conduct of the Male Employee, who tagged the Applicant in ‘blokey’ and ‘crass’ Facebook posts in the past.  The Employer distinguished that conduct from the conduct of the Applicant, noting that those posts were not sexually explicit and did not include the tagging of colleagues or suggest conduct had occurred at work.

Decision

Commissioner Bissett accepted that the post had, at the very least, sexual overtones.  His Honour also accepted that the post indicated that the incident took place at work and that there was no other way to read it.  Commissioner Bissett stated:

“[The Applicant’s] conduct displayed an appalling lack of judgement and concern for the effect making such a post might on his two colleagues. … By making the post, [the Applicant] affected the health and safety of his work colleagues…

“By making the post, [the Applicant engaged in conduct which had the potential to adversely affect the reputation of [the Employer].  The joke was not shared by a few individuals but by a range of people, some of whom work at [the Employer] and some whom do not.  Many of those people knew [the Applicant] worked at the [the Employer] and could conclude the incidient took place at work.”

Commissioner Bissett accepted that the sorbolene incident was not coincidental to the making of the Facebook post, and that the intention of the conduct in that respect was to suggest that someone had masturbated at the Male Employee’s desk.

Commissioner Bissett accepted that the Male Employee was offended and had grounds for taking offence.  His Honour stated:

“[The Applicant], by his actions, exposed [the Male Employee] and [the Female Employee] to humiliation and potential ridicule at work.  The professionalism and appropriate standards of conduct of their co-workers must be relied on to ensure this does not occur.  His actions were crass, careless and showed an absence of judgement.”

Commissioner Bissett accepted that in this case there was a valid reason for dismissal.

Commissioner Bissett was not critical of the Employer’s process, and rejected the Applicant’s argument that a decision had been made before the meeting where he was invited to provide a response.

His Honour did elect to make comment on the allegation that was made by the Applicant that other people, including the Male Employee, had engaged in inappropriate conduct on social media yet had not been subjected to disciplinary action.  He commented on the Male Employee’s involvement in posts and noted that whilst those particular posts were “crass and immature”, they were not sexual in nature and did not implicate the workplace, and certainly were not the source of complaint.  Commissioner Bissett also noted an image that was posted on the Employer’s Facebook page by reference to a charity fun run involving a ‘fake naked bottom’ being squeezed.  Commissioner Bissett commented:

“The post does not suggest any sexual activity and has not been subject to complaint.  It clearly does, however, implicate the workplace in conduct that is unbecoming and [the Employer] would be well placed to better monitor its Facebook content”.

Despite being satisfied that the Employer had a valid reason for the dismissal and that the process followed was appropriate, Commissioner Bissett found that the decision to terminate was “harsh in that it was disproportionate to the gravity of the misconduct.”  His Honour took into account the significant economic and personal consequences for the Applicant, especially in the case where he has young children including a child with ADHD.

He also noted that the Applicant had an unblemished work history.

Commissioner Bissett conceded that the conduct was a ‘serious matter’ and held that it warranted a “sincere and heartfelt apology from [the Applicant] to [the Male Employee] and [the Female Employee] and recognition of the distress he had caused.”  Commissioner Bissett noted that it was ‘one-off conduct’ and that he did not consider that it warranted termination of employment.

Commissioner Bissett refused reinstatement of the Applicant, and asked the parties for submissions as to compensation.  At the time of preparing this Update, the Court has not yet released the compensation decision.

Lessons for Employers

This case serves as a reminder that the Fair Work Commission will look at more than just whether there is a valid reason for the termination and whether a fair process was followed in effecting a termination.  The Fair Work Commission will consider whether the outcome of the process, being the termination, and whether it is proportionate to the conduct that was engaged in.  The Commission will also take into account the work history of the applicant and the impact of a termination of the employee (and as in this case, their family).

The case also serves as a reminder that the misuse of social media in a way creates a risk to the reputation of the employer and/or impacts on the health and safety of employees in the workplace and will potentially create a valid reason for terminating that employee.  There is often a fine line between what constitutes a social media post that can be relied upon for termination, and what cannot be relied upon for termination.  We encourage employers who are considering a termination that relates to use of social media to act cautiously and seek legal advice.

Employers should also ensure that they are regularly reviewing their social media policies so that they are consistent with new technologies and the trends in decisions such as this one.  Employers should also monitor their own Facebook page on a regular basis so to ensure the content posted on that page is consistent with its own social media policy.

Lisa Aitken, Managing Partner

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