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Out of hours Facebook Messenger post valid reason for dismissal

The FWC have 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.

One evening, on the employee’s rostered day off, he received a pornographic video message on Messenger from an old friend he had recently reacquainted with.  Later that evening, the employee sent the same message to a number of his Facebook friends, including 19 of his co-workers.  At least one of the female co-workers replied to the employee expressing discontent at having been sent the message.  The next day, the employee issued an apology on his Facebook page for sending the message.

The employer subsequently found out about the incident and commenced an investigation, including seeking information from three female employees who received the message.

Ultimately, the employee was terminated for serious and willful misconduct, although the employer opted to pay the employee in lieu of his notice period.  The employee then commenced an unfair dismissal claim.

In her decision, Commissioner McKenna noted that one of the defences put forward by the employee was that no complaint had been made to the employer about the employee’s conduct.  On this issue, the Commissioner confirmed that there did not need to be a complaint for the employer to investigate.  She stated:

“If an employee engages in conduct outside of the physical workplace towards another employee that materially affects or has the potential to materially affect a person’s employment that is a matter which legitimately may attract the employer’s attention and intervention.”

The Commissioner also noted that the ‘out of hours’ nature of the message was a relevant issue, but in this circumstance found that the only reason the employee was connected to his co-workers through Facebook was because of the employment relationship.  The Commissioner noted that one of the female co-workers drew a connection with work in her negative response to the employee’s message.  These factors were deemed sufficient to draw a necessary connection between the conduct and the employment. Ultimately, the Commissioner accepted that there was a valid reason for the dismissal and that there was a fair process followed, and decided to dismiss the application.

Aitken Legal

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