The Fair Work Commission (FWC) has awarded over $6,000 compensation to an employee who was unfairly dismissed after making a “crude and immature” Facebook post suggesting that a female colleague provided sexual favours to their boss.

The decision reiterates the need for employers to ensure that proper processes are adopted when investigating any alleged misconduct. In this case, the employer proceeded to dismissal without putting the allegations to the employee for his response. Additionally, the decision reminds employers that in order to rely on policies concerning employee use of social media, an employer must ensure those policies are adequately communicated to employees.

Background

Mr Somogyi was employed by LED Technologies Pty Ltd (LED) as a merchandiser/company representative for just over 13 months when he was summarily dismissed on the grounds of misconduct after posting an “offensive” statement on his personal Facebook page. The offending post made crude comments of a sexual nature about his boss and a fellow employee. Shortly after, Mr Somogyi removed his original post and made a new post on his Facebook page which made comments of a similar nature, including suggesting that his mother (who also worked at LED) had been bullied and her position taken by the new female employee. The posts were uploaded by Mr Somogyi whilst he was at work.

Mr Somogyi was summarily dismissed on the day he posted the comments after his fellow employees notified his manager about the post. In a telephone conversation, Mr Somogyi’s manager advised him to “return all company property to the office” and when Mr Somogyi asked why, he was told “it doesn’t matter, you’re fired”.

Mr Somogyi submitted that his dismissal was unfair as he was not provided with an opportunity to respond and was unaware that his Facebook post was the catalyst for his dismissal until he read LED’s response to his unfair dismissal claim. Mr Somogyi argued that he posted the status on Facebook during a break and had not previously been provided with LED’s social media policy.

While Mr Somogyi’s manager acknowledged that he did not provide Mr Somogyi with “much of a chance to respond”, he believed that Mr Somogyi “was lying”. LED submitted that it dismissed Mr Somogyi because the posts were offensive, were directed at its business and were made whilst Mr Somogyi was working.

Decision

The FWC found in favour of Mr Somogyi, finding that LED lacked a valid reason for the dismissal and also failed to offer Mr Somogyi procedural fairness in its decision to terminate him.

The FWC held that although it was clear Mr Somogyi’s comments were “offensive and vulgar” and “undoubtedly crude and immature”, the post was not directed at LED or its employees. The FWC accepted that Mr Somogyi made the post in an attempt to support his mother, despite the fact that the post was unlikely to achieve its desired effect. Additionally, there was no evidence suggesting that Mr Somogyi was not on a break at the time he posted the status, nor was there any evidence confirming that LED had provided Mr Somogyi a copy of its social media policy.

The FWC focussed heavily on the issues surrounding how Mr Somogyi’s dismissal was carried out. At the time of termination, Mr Somogyi was not provided with a reason for his dismissal and was given little opportunity to provide any explanation or response prior to his dismissal. LED’s lack of dedicated human resource specialist also negatively impacted on the processes involved in carrying out the dismissal. The FWC also commented that “offensive and vulgar” references are increasingly part of common vernacular and that there was evidence that a culture of tolerance of this kind of language existed at LED.

Mr Somogyi was awarded $6,328 compensation for lost pay but did not seek to have his job reinstated.

Somogyi v LED Technologies Pty Ltd [2017] FWC 1966