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November Update – Social media use in the workplace back in the spotlight

After a recent ‘drought’ of cases relating to social media in the workplace, there are two recent decisions in the Fair Work Commission that will be of interest to employers.  Both recent cases involve dismissals that relate to the relevant Applicants making controversial contributions on Facebook, albeit in very different circumstances.

The ISIS case

Background

This case relates to the dismissal of an employee (in 2015) who worked for a company that provides airport ground handling and services, including baggage handling.  The Applicant a casual baggage handler.  In October 2015, the Applicant was terminated due to a breach of the company’s social media policy.  It was alleged that the Applicant had made posts on Facebook that “had jeopardised [the company’s] relationship with its client and its brand”.

The Applicant was an active social media user, and regular poster on Facebook.  At the heart of the facts of this case, was the Applicant’s decision to ‘share’ a controversial post made by a group sympathetic to the terror group ISIS, that related to a political demonstration, together with the words “We all support ISIS”.

It should be noted that the Applicant made a number of other controversial posts, two of which were, together with the ISIS post, relied upon for his termination, and a further two that were not put to the Applicant during the investigation process that resulted in his termination.  During the hearing it was also conceded by witnesses for the Employer, that the non-ISIS posts did not actually breach the Employer’s social media policy, and therefore could not be relied upon for his termination.

Decision

Accordingly, the Commissioner focused on the ISIS post, although he noted that on the evidence, the Employer had relied upon two other posts, not put to the Applicant during the investigation, as part of its reasons for terminating the Applicant.

It was also relevant that the Applicant submitted during the hearing that he thought he made all five controversial posts within a secret group on Facebook, as opposed to a public post.

Commissioner Hunt’s comments in relation to the ISIS post in particular, and whether that post constituted a valid reason for dismissal are instructive in this matter, particularly the Commissioner’s criticism of the investigation undertaken by the Employer.  We have set out a detailed passage from the decision to this effect:

“[292] Despite [the Applicant’s] response to [the Employer] during the investigation that he thought he had made the posts within a secret group with like-minded individuals, even if he had made the ISIS post within such a group, it would not have a material outcome on the findings of this Commission. If it had been discovered that [the Applicant] had made a pro-ISIS Facebook post, and he worked in a high security environment at the airport, and he in fact did support ISIS, I would not hesitate to find a valid reason for dismissal. It would not matter that the post had been made within a secret group.

[293] In fact, if the above scenario had occurred, and [the Applicant] accounted for being a supporter of ISIS, I would support a valid reason for dismissal not just on a breach of the [social media] Policy. It would be far too great a risk, regardless of whether a breach of the policy existed or not, for an employee to be employed in that environment with those extreme views, and the potential for a terror threat. In any event, I expect that if it was reported that the investigation concluded that the person did hold pro-ISIS views, and they worked airside, those in control of the airport would make a determination that the individual would not be accredited, regardless of the employer’s consideration of the employment.

[294] Having considered the above, I find it unsatisfactory for [the Employer] to have failed to properly investigate [the Applicant’s] Facebook account. It was available to [the Employer] through [another employee’s] Facebook login, to have reviewed [the Applicant’s] complete Facebook newsfeed. If time and attention had been taken to review [the Applicant’s] Facebook newsfeed, [the Employer] would have discovered that [the Applicant] is not, in fact, a supporter of ISIS. [the Employer] was informed of that during the meetings, but was not satisfied with [the Applicant’s] response. It did not accept the answer of ‘sarcasm’.

[295] Alternatively, [the Applicant] could have been invited to explain to [the Employer’s representative] all recent posts made by him on Facebook. This exercise would have taken no more than 1-2 hours, and satisfied [the Employer] that [the Applicant] was not an ISIS supporter.”

Commissioner Hunt found that whilst the ISIS post was in breach of the social media policy, it did not constitute a valid reason for the dismissal.  The Commissioner noted that the Applicant admitted to making the post by the day of termination and had apologised for making the post, and offered to take the post down.  The Applicant explained that he had made the post in sarcasm and was not a supporter of ISIS.

Commissioner Hunt found that the Applicant’s responses had not been properly considered by the Employer.  Commissioner Hunt found that a more thorough investigation would have led the Employer to the proper conclusion that the Applicant did not support ISIS.

The Applicant’s conduct in making the post did not escape strong criticism from the Commission though, with the Commissioner stating “The ISIS post does not even have the look of sarcasm.  It is not witty.  It is not funny.  It is a ridiculous post.”

Having found there was no valid reason for the dismissal, the Commissioner understandably criticised the Employer’s process for investigating the post, noting that a thorough investigation would have revealed that the Applicant did not actually support ISIS.  The Commissioner posed the question why the Applicant was not given the opportunity explain why he made the posts in writing.  The Applicant was also critical of the 10 minute timeframe in which the Employer made the decision to terminate the Applicant.

Compensation Awarded

The dismissal was found to be harsh, unjust and unreasonable.  The Applicant was awarded 8 weeks’ compensation, less 40% of that amount due to the misconduct he had engaged in by making a post in breach of the social media policy.

Employee terminated for offensive Facebook post targeting colleague

The second recent case reflects a recurrent social media related workplace scenario.  In this case, the Applicant had previously been warned in relation to him engaging in bullying and harassment related behaviours in the workplace.

Facts

In relation to the conduct in this particular case, the victim of the Applicant’s conduct was the Relief Maintenance Supervisor, who had previously (and it seems on a somewhat ongoing basis) been subjected to ‘bullying conduct’ by a group of employees.  Whether the Applicant formed part of that group of employees was not the subject of allegations in this matter.

In April 2016, the Applicant commented on a Facebook post that depicted an employee of the Employer (not the Relief Maintenance Supervisor, but another employee) wearing a cap “with an exceptionally large peak”.  The subsequent posts relating to that photo went as follows:

  • 8.10pm (GL) Photo posted with comment “Guess who I am with (TP)”.
  • 8.12pm (BG) “Didn’t know (nick name known to refer to the Relief Maintenance Supervisor ) was N/S (being an apparent reference to nigh[t] shift)
  • 8.17pm (the Applicant) “I’ve seen f&$kwits with bigger peaks on their hats”
  • 8.39pm (DB) “Nice hat (TP) at least we know you’re a better bloke than the usual hat wearer”
  • 8.47pm (AK) “Is that new eye protection there getting us”
  • 8.53pm (the Applicant) “Next you’ll be running the denim pants with reflective tape
  • 9.10pm (NH) “That the most work Ive ever seen you do (TP) lol”
  • 9.15pm (JR) “Found ya hat then”
  • 6.13am (SH) “Bahahahaha”
  • 12.39pm (CH) “Ha ha”
  • 12.47pm (MC) “Crack up”
  • 7.29pm (MC) “Crack up”
  • 9.51pm (MC) “Crack up”
  • 10.16pm (DB2) “Must be a crack up (MC) haha”

The two posts which led to the Applicant’s dismissal are underlined in the above extract.

Importantly, it should be understood that the Relief Maintenance Supervisor was renowned in the workplace for wearing caps with pronounced peaks.  It should also be noted that in the series of posts, the Relief Maintenance Supervisor is actually referred to by his nickname (though not in the posts made by the Applicant).

The Relief Maintenance Supervisor was made aware of the posts by an acquaintance and subsequently made a formal complaint.  An investigation was commenced by the Employer.

Investigation and Termination

The Applicant was stood down, along with three other employees.  During an investigation meeting with the Applicant, the Applicant maintained that the comments he made were not about the Relief Maintenance Supervisor.  The Applicant also raised a number of concerns he had with the investigation process, including that he considered that two of the investigation panel members would not conduct an impartial investigation (which he later made a formal complaint about).  He also questioned why one of the other employees involved in the posting incident had not been stood down.

Following the investigation, the Applicant (and two other employees) were dismissed.  The Applicant was dismissed on the following grounds:

  • That the comments he posted “were made to belittle and ridicule a fellow … employee which has resulted in considerable upset to the employee.”
  • His behaviour had breached company policy and could affect the reputation of the company.
  • He had already been on a final written warning for similar behaviours.

The Applicant commenced an unfair dismissal claim.

Decision

In the hearing it was noted that the Applicant’s posts took place outside of hours.  Commissioner Hampton said that there was no problem establishing a sufficient connection between the out of hours conduct and the employment in this case.  The Commissioner said:

“That connection includes the fact that many of the applicant’s Facebook friends are also employees of [the Employer], but other non-employees from the Broken Hill Community were also included, and the posts were undertaken in the context of a photo of a … employee taken at the workplace and uploaded by another … employee. Further, in the context of a regional community where the conduct of employees associated with the mine is capable of impacting upon the reputation of [the Employer] as an employer of choice and more broadly, conduct of the kind alleged here is capable of damaging the employer’s legitimate interests.”

The Commissioner noted that the Applicant argued that he had “simply looked at the photo and responded without giving it much thought.”  The Applicant had also argued that he had not seen the earlier comment identifying the Relief Maintenance Supervisor by nickname.

The Commissioner found that “it was notorious in the workplace that [the Relief Maintenance Supervisor] wore a hat with a very pronounced peak.  This had already been the subject of the offensive depiction on the toilet door and the hat was known in the workplace in reference to the Relief Maintenance Supervisor.”

The Commissioner held that the first post was directed at the Relief Maintenance Supervisor.  In making this finding, the Commissioner noted that some of the other employees who had made comments had admitted that their posts were directed at the Applicant (although the Employer accepted the denials of other employees).  The Commissioner accepted the Applicant’s explanation for the second post as being a reference to those in management roles more than the Relief Maintenance Supervisor.

The Commissioner also relevantly noted that the Applicant was under notice (and had received a final warning to this effect) that he should not make comments that could cause distress to another employee.

The Commissioner went on to find that there was a valid reason for the dismissal.

Lack of Procedural Fairness

As an aside, it is interesting to note that he Commissioner noted that the Employer’s social media policy had not been distributed to the employees at large, and that as the Applicant had not been trained in the social media policy, he could not have knowingly breached that policy.

Despite there being a valid reason for the dismissal, the Commissioner went onto find that the dismissal was lacking in procedural fairness.  The basis for this finding was that the Commissioner found that in dismissing the Applicant, the Employer had failed to notify the Applicant of all the reasons for the dismissal, and therefore denied the Applicant the opportunity to respond to those issues that were relied upon for his termination.

In particular, the Commissioner noted that in an HR Summary, provided to senior management and which contained the findings of the investigation panel, including a recommendation to terminate 4 of the employees, there was reference to a confidential report that was relevant to the incident.  There was also references in the report to ‘Boom Gate time discrepancies’.  Neither the confidential report or the boom gate issues were raised with the Applicant at the time of termination, nor was any evidence raised on these matters at the hearing.  The Commissioner found that those issues were issues that were relied upon in terminating the Applicant.

As a result of these procedural failures, the Commissioner determined that the dismissal was in fact ‘harsh, unjust or unreasonable’.  The Applicant sought reinstatement to his position, which was vehemently opposed by the Employer.  Reinstatement was rejected by the Commissioner on the basis that the Applicant did not show any appreciation for the seriousness of his conduct, nor did he show any real contrition.

Compensation

Accordingly, the Applicant was awarded $28,471 in compensation, which included a 30% deduction for the misconduct engaged in by the Applicant.  This equated to approximately 12 weeks’ pay for the Applicant.

Lessons from the cases

Both cases in this instance involve employees making Facebook contributions which were undoubtedly inappropriate, with both employees suffering deductions to their compensation awards due to their misconduct.  However, in both cases, the Employers failed to establish that they had provided procedural fairness to the employees, and lost their respective cases.

The key lessons from these two cases are:

  1. That all employers should have a properly drafted and comprehensive social media policy, and that all employees should be trained in and understand that policy.
  2. Out of hours’ social media posts can be relied upon for dismissal where there is a relevant connection between the post and the employment relationship.
  3. Employer’s must do more than just accept the face value of social media posts. In the ISIS case, it was the Employer’s lack of investigation that led it drawing the wrong conclusion about the Applicant.  The Employer accepted the post as it was written, and relied upon it for dismissal, where further investigation would have revealed the true perspective of the employee.
  4. Before making the decision to terminate an employee, you must put all the issues which you rely upon for dismissal to the employee and provide that employee with the opportunity to respond to those issues. You must also consider the employees responses and conduct any investigations necessary following those responses before you proceed to make the decision to terminate.
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