Facebook users now surpass 1 billion, including many of your employees. Everyone’s buzzing about social media and whether an employee can be sacked for what they do there. The recent Full Bench appeal Linfox Australia Pty Ltd v Glen Stutsel [2012] FWAFB 7907 has shed some light.

In a nutshell

Linfox claimed that an employee was guilty of serious misconduct following posting comments on his Facebook page which were described by Linfox as offensive, discriminatory and derogatory.

What did he say? Among other things, the employee referred to his Muslim manager as a “bacon hater”; made comments about terrorism and the death of a Muslim terrorist; and participated in “outrageous” banter of a sexual nature with other employees, about a female manager.

Sounds like conduct justifying dismissal, right?

Nope. The Full Bench upheld the original decision finding that the conduct did not amount to serious misconduct, and dismissal was harsh, unjust and unreasonable. The Full Bench also affirmed the order for reinstatement and back pay.

Why?

The personal circumstances of the employee played a big role. He’d been with the company for 22 years, had a satisfactory employment history, and Fair Work Australia (FWA) took into account his job prospects. Parity of treatment was also relevant: other employees who posted comments on the same Facebook page weren’t disciplined. Oh, the employee was contrite too, and regretted the whole episode.

But what did FWA have to say about Facebook postings we hear you ask? Well:

  • the employee’s age and knowledge of Facebook was taken into account - his Facebook account was set up by his wife and daughter and he apparently believed that his settings were set to maximum privacy settings (they weren’t intended to be seen by the managers). Additionally, he didn’t know he could delete his own posts and the posts of others;
  • the conduct occurred outside of the workplace and outside of working hours;
  • his comments about terrorism were deemed to be a personal expression.

Ultimately, the Full Bench did say that the posting of derogatory, offensive and discriminatory statements or comments about managers or other employees on Facebook may provide a valid reason for termination of employment. Just not this time, having regard to this employee.