Fair Work Australia (FWA) continues to treat ‘social media’ terminations with caution, but with a clear signal that its tolerance of social media ignorance will not last.
In July this year, we reported that FWA had overturned a Facebook dismissal decision by Linfox Australia on the basis that it was harsh, unjust or unreasonable.
To re-cap, an employee, Mr Stutsel, claimed he was unfairly dismissed by Linfox when his Facebook page was found to be publically accessible. The page hosted comments (by Mr Stutsel and others , including fellow employees) that Linfox considered to be offensive and discriminatory towards two employees.
In his defence, Mr Stutsel claimed that his wife and daughter had set up his Facebook page and that he did not know how to manage page content. Mr Stutsel claimed the comments were made by others or were merely “light hearted” banter.
FWA found that the postings were not a valid reason for dismissal and that to terminate Mr Stutsel’s employment was unfair. It found that the Facebook posting was not intended to be public, that his “friends” had not objected to the comments, and that others had posted the derogatory sexual comments – rather, that Mr Stutsel had merely failed to delete them. An order was made to reinstate Mr Stutsel’s employment with Linfox.
FWA UPHOLDS DECISION ON APPEAL, BUT WITH CAUTION
The FWA Full Bench upheld the reinstatement of Mr Stutsel in a recent appeal but gave some useful insights as to when it would consider a termination to be fair.
In this case, it was persuaded to not overturn the reinstatement because of a number of factors, including:
- Mr Stutsel’s limited understanding of the privacy (or otherwise) of Facebook communications;
- Mr Stutsel’s long and satisfactory employment history, over a 22 year period;
- the fact that some of the more serious statements complained of on the Facebook page were not made by Mr Stutsel but by his Facebook friends (including fellow employees) and that he did not know that he could delete these comments;
- Linfox’s differential treatment of Mr Stutsel, given that it did not take action against other employees who took part in the Facebook conversations; and
- Mr Stutsel’s genuine remorse over what happened.
Whilst being mindful of the need to “not impose unrealistic standards of behaviour and discourse” about our work lives or “ignore the realities of the workplace”, the FWA Full Bench noted that comments made on the widely accessible forum of Facebook were of a different nature to that of a “pub conversation” or a private discussion shared by friends. It stated:
“unlike conversations in a pub or café, Facebook conversations leave a permanent written record of statements and comments made by participants, which can be read at any time into the future until they are taken down by the page owner. Employees should therefore exercise considerable care in using social networking sites in making comments or conducting conversations about their managers and fellow employees.”
Derogatory, offensive and discriminatory statements about managers and employees might provide a valid reason for termination. The primary factors relevant to that assessment will be the nature of the comments and statements made, and the width of their publication.
Significantly, the FWA Full Bench commented that:
“with increased use and understanding about Facebook in the community and the adoption by more employers of social networking policies, some of these factors may be given less weight in future cases. The claim of ignorance on the part of an older worker, who has enthusiastically embraced the new social networking media but without fully understanding the implications of its use, might be viewed differently in the future.”
SOCIAL MEDIA POLICY IMPETUS
This decision greatly increases the importance of employers putting social media policies in place and ensuring that employees understand the requirements of these policies, particularly in relation to conduct engaged in outside of working hours. This is necessary if employers wish to dismiss employees in the future for engaging in inappropriate conduct on social media and at the same time minimise the prospects of the termination being found to be harsh, unjust or unreasonable.
That social media policy should set out the boundaries of reasonable social media use when connected with work, and the sanctions applicable for misuse. A policy that is clear and positive, which supports rather than deters responsible social media use, can simultaneously send a positive message to employees and provide the necessary protection to employers.