Linfox Australia has appealed against the recent controversial decision of Glen Stutsel v Linfox Australia Pty Ltd  FWA 8444, where an employee was reinstated following the termination of his employment for posting offensive comments about his managers on Facebook.
What does this mean for employers?
- Pending outcome of the appeal, the decision at first instance should be viewed with caution. While in this case it was found the employee’s comments were not public and therefore did not justify the termination of the employee’s employment, other recent decisions have held that comments made through social media are considered public and may justify termination of employment.
- Although social media use by employees is considered out of hours conduct, an employer can exert control over its use where the employee's conduct is either: likely to cause serious damage to the relationship between the employer and employee, damaging to the employer’s interests or incompatible with the employer’s duty as an employee. An employer may be able to dismiss an employee where their comments on social media fit into one of these categories.
The case in brief
Mr Stutsel, who was employed by Linfox as a truck driver for 22 years, brought an unfair dismissal claim after his employment was terminated for comments made about his managers on his Facebook page.
Stutsel posted comments and participated in a conversation about the race of one of his managers. Another employee (and Facebook friend) had made comments of a sexual nature about another Linfox manager on Stutsel's Facebook page, which Stutsel failed to delete.
Stutsel gave evidence that his Facebook account had been set up by his wife and daughter with what he thought were full privacy restrictions. He believed that nothing he said could be seen by anyone except the people he had invited to be his Facebook friends.
He also claimed that he was unaware that he could delete another person’s posts on his page and made no attempt to prevent his friends from making continued derogatory comments.
Commissioner Roberts accepted Stutsel’s evidence and noted that his Facebook page was not intended to be on public display or a public forum. Rather, Commissioner Roberts likened the postings to a ‘conversation in a pub or café’. It was held that any external reader not familiar with Linfox would have considerable difficulty in making out who and what the comments were about.
Whilst Linfox sought to rely on its induction training and relevant anti-discrimination policies (which provided that employees ‘must ensure no one is unlawfully discriminated against or harassed’) to justify Stutsel's dismissal, Commissioner Roberts held that this was not sufficient and that large companies, like Linfox, should be utilising social media policies.
To be treated with caution
While in this case Stutsel's comments were not found to be 'public’ and did not justify the termination of his employment, several previous decisions involving an employee’s use of social media have resulted in a different outcome:
- In Fitzgerald v Smith  FWA 7358, a disgruntled employee made negative comments about, among other things, her pay for the Christmas holidays. The tribunal held that a Facebook communication is not only amongst friends and can be seen by an ‘uncontrollable number of people’ making it no longer a private matter but rather ‘public comment’. Therefore, where it can be shown that a comment breaches an express term of an employee’s contract of employment, this will provide a ground for dismissal.
- In O’Keefe v Williams Muir’s Pty Limited  FWA 5311, negative comments were made by an employee of The Good Guys on Facebook regarding an error in his pay. Whilst his Facebook page was set to its maximum privacy setting, his work colleagues could still view the comments. It was found that it does not matter that comments are made on a home computer and out of work hours if they can still be read by work colleagues.
On appeal, Linfox has argued that this decision in effect creates a ‘free-for-all’ within the workplace where an employee forms a view that they can make comments of an insulting nature with ‘absolutely no ramifications’. The appeal hearing has been adjourned.
Tips for employers
- Employers should be implementing appropriate social media policies to specifically deal with not only the use of social media at work, but inappropriate employee conduct on social media forums.
- Once these policies are in place, employers need to ensure that all staff and management are given ongoing training on these policies, so that they can be relied upon in the event of disciplinary action or to justify dismissal.
- If an employee is using social media to voice their workplace concerns, ensure that a fair process is used to deal with the situation (including appropriate warnings) and that the disciplinary process is documented, particularly if the employee falls within the unfair dismissal jurisdiction.