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Employment Update – March 2018 – Out of hours conduct on Social Media leads to Fair Dismissal

The Fair Work Commission has upheld a company’s decision to dismiss an employee, after the employee sent a pornographic video to a number of his colleagues through the Facebook Messenger app.

The employee was employed by a large container terminal operator as a stevedore.  He was dismissed, with payment in lieu of notice, some 10 months after commencing employment with the employer.

The background to this dismissal centred around the employee’s inappropriate use of social media out of hours.

The conduct

On the day in question, being one of his rostered day’s off, the employee had been drinking at the pub during the afternoon, and had continued drinking at home into the evening.   That evening, the employee received a pornographic video message on Messenger from a long-time friend.

Later that evening, the employee sent the same message to a number of his Facebook friends, including 19 of his co-workers.  The employee claimed that he did not know he sent the message to so many of his Facebook friends as he had only wanted to send it to ‘some of his mates’.  When the employee realised that he had sent it to so many people, and that some were offended by it, he said he felt embarrassed and regretted the message, and issued a public post on his Facebook page, apologizing for the post and the offence it causes to some friends.

There was then a mixed reaction to the message and the apology.  Crucially though, at least one of the female co-workers replied to the employee by messenger expressing discontent at having been sent the message.  Specifically, she messaged the employee stating:

                “Are you serious? Mate don’t send me that shit”.

There was then some further discourse with the female colleague after the apology, where she reiterated to the employee that she did not appreciate him sending the message and referencing that “someone will take it really serious and you will end up with no job.”  The employee again confirmed his position that it had been sent by mistake.

The investigation (a summary)

  1. About 6 days later, the employee received a call from a representative of the employee’s union. Some of the evidence around the employee’s interaction with the union representative was unclear in the decision, but it does appear that the union representative had received the video message as part of the group message sent by the employee.  The employee gave evidence that the representative had not actually looked at the message at the time they had a discussion, but had instead been told about the message by other employees and the representative confirmed that it was an inappropriate message.
  1. It then appears that the representative and employee discussed the employee’s personal life, and that the employee explained that he had some personal problems outside of work. The union representative subsequently organised for the employee to take 3 months leave without pay.  This was organised through correspondence with the employer and a discussion with the employer’s General Manager – Human Resources (‘GM’).
  1. About three days after the employee commenced the unpaid leave, the GM found out about the pornographic message. The GM subsequently wrote to three female employees who received the video message about the incident.  She also wrote to the employee and informed him that she believed that the employer had been misled as to the basis for his application for leave without pay, and that it appeared the absence was in fact a ‘ban’ by the union.  The GM also informed the employee that if the conduct was substantiated then it could be considered sexual harassment of those female employees who received the message.
  1. Finally, the GM wrote to the union about the failure to disclose the information relating to the employee’s conduct and was very critical of the union’s conduct in the matter.  To be clear, no ‘disciplinary ban’ by the union was established in the hearing of this matter.  However, the GM did express her concern that the union had sought to cover up the employee’s conduct.
  1. There was quite a considerable volume of correspondence exchanged between the GM, relevant witnesses, the union and the employee. Allegations of a cover up by the union permeated this correspondence.  In the end, the GM confirmed with the employee that the employer was considering an allegation of serious and willful misconduct against him and asking for his response to the allegation.
  1. It appears that the union tried to delay the time for the employee’s response, but that the GM insisted that the employee reply to the allegations in the timeframe provided to him. The union indicated that a response would not be forthcoming from the employee until the employer provided evidence of its allegations.  Ultimately, and it appears under union advice, the employee did not respond.
  1. The GM subsequently determined to proceed with the termination of his employment, but despite making a finding of serious and willful misconduct against the employee, the GM elected to pay the employee in lieu of notice of termination.

Unfair Dismissal Application/Arbitration

The employee commenced an unfair dismissal claim.

At the heart of the employee’s claim was the fact that no employee had made a complaint about the employee to the employer.  Commissioner McKenna accepted the employer’s position on this point that “if it learns of matters – particularly including potential sexual harassment of bullying – that employer responsiveness is not and should not be considered necessarily to be contingent on a complaint having been made.”

Duty to Investigate:

The following statement by Commissioner McKenna in the decision is instructive for employers regarding an employer’s duty/right to investigate particular matters irrespective of whether a complaint has been made:

“[74] If an employee engages in conduct outside of the physical workplace towards another employee that materially affects or has the potential materially to affect a person’s employment that is a matter which legitimately may attract the employer’s attention and intervention. The use, out of work hours, of social media is one such example in the case of matters concerning bullying and sexual harassment. In this regard, [the GM’s] evidence referred to matters including duty of care and managing risk to employees, and the range of other considerations she addressed. That was an appropriate managerial or organisational response. The situation here was that there was a paucity of direct or confirmable information [the GM] had available to her in attempting to take a responsible approach on behalf of the respondent employer and the female employees who may have received the video. There may be a complex of reasons why an employee does not wish to raise complaint concerning sexual harassment or bullying – and it is a notorious fact that non-reporting of harassment or sexual harassment is a not uncommon workplace phenomenon or employee reaction. For example, in this case, the messages one of the female employees sent to the applicant included an expression of concern that he would lose his job for engaging in conduct in sending material of this nature. It is not difficult, given the experience of such matters, to envisage or draw inferences as to other reasons why a female employee would not wish to have been seen to be making an issue of matters by initiating a complaint in circumstances where women have been employed as stevedores by the respondent only in the comparatively recent past in what is a male-dominated industry.”

Out of Hours Conduct

Commissioner McKenna also considered the historical position taken on out of hours conduct in the case law, and made an insightful statement regarding the out of hours conduct, and why the conduct had sufficient nexus to the employment relationship in this case:

“[79] What was put as what I accept is a real, contestable issue regarding the dismissal is that this was out-of-work conduct, not involving any work-related facilities, and involving the applicant and employees of the respondent who had self-selected to be Facebook friends – and in relation to conduct among whom the applicant has forcefully submitted is no proper business of the employer under the terms of its policies or otherwise. Here, however, there was nothing to indicate that there was anything other the cornerstone of the employment relationship which led to the applicant having 20 work colleagues as his Facebook friends and sending the video to 19 of them by Messenger. Employment by the respondent of the applicant and the 19 employees is the relevant nexus here, it appears, and their being Facebook friends stemmed only from the employment. Approached another way, if there was any nexus other than that those individuals were all employees of the respondent, there was no evidence of it. The applicant selected those to whom to send the video by Messenger, including 19 of the 20 individuals who were both employees of the respondent and Facebook friends; as noted earlier, it was conceded in the proceedings that this could not have been a mishap of inadvertently hitting a “send all” or equivalent. A female employee of the respondent made plain to the applicant her comments about the video in the Messenger commentary that then went between them – and, it may be noted, in that commentary she drew a connection with work in her responses to him.”

Valid Reason for Dismissal

Ultimately, in this case, Commissioner McKenna accepted that there was a valid reason for the dismissal in this case.  Relevantly, she stated:

“[101] I am satisfied there was a valid reason related to the applicant’s conduct in sending the video to 19 work colleagues, relevantly including three female employees (albeit it appears from the given names of the employees who actually received the video from the applicant that the number of female recipients was in fact more than three and, as to this, I should also note that there should not be gendered assumptions about the recipients of the video). I am not dissuaded from reaching that conclusion by the submissions for the applicant that the means of effecting that communication was Messenger. The medium by which the video was sent by the applicant to the employees of the respondent matters no more in this case than in other such cases I have listed earlier involving, for example, social media and the use of non-work facilities or the like. …”

Commissioner McKenna also accepted that the employer followed an appropriate process in terminating the employee.

Not Harsh Unjust or Unreasonable

Commissioner McKenna then turned to consider whether the dismissal was harsh, unjust or unreasonable and in finding that it was not harsh unjust or unreasonable, further reiterated her views on the use of social media in this context:

“[111] This is not a case of an employer seeking to intrude too far into the private lives of employees or to attempting to exercise supervision over the private activities of employees. The respondent was not attempting to regulate the appropriateness of an employee’s private use of social media; it was trying to respond to what was understood to be the dissemination of pornography to employees – and that considered against the background of concern arising in the context of the matters it was endeavouring to convey as to its values and approach to matters addressed in its policies and code, including potential sexual harassment of female employees. The material sent to employees by the applicant through the use of Messenger as out-of-hours conduct had the likely effect of presenting spillage or potential spillage into the workplace – where the employees would then work cheek-by-jowl together – and this in circumstances where they have received induction and instruction as to the values and culture that the respondent was endeavouring to engender.

[112] As it transpires, based on the evidence, in this case sending the video did in fact spill into and impact upon the workplace. As best as can be ascertained, the applicant knew other employees were not happy and, in consequence, had contacted the union; the union contacted the applicant about the matter, and the applicant was informed that it was inappropriate; the respondent learned of the matter of a pornographic video; [the GM] was informed by employees that the applicant was the subject of a disciplinary sanction in the form of a ban (although I have dealt with the evidence as to that); [the GM] was concerned about sexual harassment of female employees including in the context of duty of care, management of risk to employees and the range of other matters identified in her evidence.”

The employee failed in his application and it was dismissed.

Lessons for Employers

This case is the source of some key lessons for employers.

Firstly, it reiterates that an employer does not need to receive a complaint from an employee in order to investigate that matter, or take action against an employee in a matter – particularly so where the potential allegations relate to workplace bullying and/or sexual harassment.  In instances where there are potential allegations of bullying or sexual harassment, an employer’s duty to ensure the health and safety of its workplace occupants may compel the employer to investigate such matters (and potentially even in circumstances where an employee refuses to make a formal complaint or does not want to be involved in any way).

Secondly is the reconfirmation that out of hours conduct can be the basis for disciplinary action, up to and including termination for serious misconduct, where the out of hours conduct has a sufficient nexus to the employment relationship.  In this case it was found that there was a sufficient connection to the employment because the only reason that the employee was Facebook friends with the employees who received the message was because they worked together.  The matter then spilled over into a workplace matter, where employees who received the message referenced the work relationship, and then reports were made to the union and leave arranged for the employee, further emphasizing the connection with the employment.

Despite this decision affirming the above points, the question of whether an investigation should be conducted, how it should be conducted, whether disciplinary action taken, including based on out of hours conduct, is one that should be assessed on the specific facts of the case.  Aitken Legal encourages employers to seek legal advice at the early stages of becoming aware of alleged conduct and in making decisions about how to proceed.

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