In a recent decision of the Fair Work Commission,1 an employer was ordered to pay compensation to an employee who was dismissed for sharing and commenting on social media posts outside of work hours. The decision is the latest in a series which confirm that while employers may validly terminate employees for such behaviour, they must proceed with caution when doing so.2
The employer, which provides airport ground handling and services, had dismissed the employee on the basis of a number of social media posts, including and primarily a post relating to the terrorist organisation commonly known as ISIS. The employee had shared a post from a Facebook group with known sympathies for ISIS and added the comment “We all support ISIS.”
The Commission noted that demonstrated support for ISIS would justify termination on the basis that supporting a terrorist organisation is incompatible with and poses a danger to the secure airport environment in which work was performed. However, a proper investigation would have revealed that the employee did not support ISIS and that the ISIS post, which the employee had intended to be sarcastic, was simply “incredibly stupid”.
In reaching this finding the Commission observed the following:
- The employer failed to properly investigate the Facebook account or give the employee an opportunity to explain all of his recent posts.
- The employer justified dismissal on the basis of at least five social media posts, however only three of these were put to the employee during the investigation and of those three the employer later admitted that only the ISIS post could justify termination.
- The investigator only took a 10 minute break from interviewing the employee to call his superiors before informing the employee of his dismissal. Given the complexity of the matter, this could not have been sufficient time to fully disclose to his superiors, and for them to properly consider, the content of the interview and the employee’s responses to the allegations.
- There was no evidence that the employer considered any sanction other than dismissal.
- The employer had not demanded the return of the employee’s security pass until four days after his suspension commenced, suggesting that it did not consider him a genuine security threat.
The decision highlights the importance to employers of conducting a thorough investigation before dismissing an employee on the basis of social media posts. It also highlights the need for employers to act ‘before the horse has bolted’ by implementing social media policies (including ones which specifically address out of hours conduct), training employees in those policies, and making them aware that comments they make online are in the public forum and can have consequences in relation to their employment.
This article was written with the assistance of William Francis, Law Graduate.