The recent decision in Linfox Australia Pty Ltd v Stutsel [2012] FWAFB 7079 reinforces how important it is for employers to have sound social media policies.

The Facts

Mr Stutsel was employed as a truck driver at Linfox Australia Pty Ltd (Linfox) for over twenty (20) years when he was dismissed for serious misconduct after posting comments on Facebook about his two (2) managers.

Mr Stutsel’s Facebook page was set up by his wife and son and he believed that he had privacy settings that would only allow his friends to view his page; however, his profile was in fact “public” and could be viewed by anyone. Mr Stutsel also conceded that a number of Linfox colleagues were his friends on Facebook and could access and interact on this page.

An investigation was conducted by Linfox, who found that the comments on Facebook amounted to sexual and racial discrimination and therefore breached Linfox’s equal opportunity policies.

Trial: Decision by a Single Member, Fair Work Australia

Mr Stutsel commenced proceedings for unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (Cth) (the Act). At trial, Fair Work Commissioner Roberts found that Mr Stutsel had been unfairly dismissed. Linfox were ordered to reinstate Mr Stutsel and compensate him for lost wages.

After reviewing the relevant evidence, the Commissioner found the conduct by Mr Stutsel did not amount to serious misconduct.

The Commissioner’s reasoning was:

  • The comments made about terrorism and the deaths of Muslim terrorists were not intended to be public;
  • The comments regarding Muslim’s were not a personal attack on Mr Stutsel’s manger, but an expression of his private views;
  • The conversation was analogous to the sort of conversation had in a pub or café and could be compared to “a group of friends letting off steam and trying to outdo one another in being outrageous”;
  • The comments made about the female manager were outrageous; however, they were made by another employee. Mr Stutsel did not realise that he had the capacity to delete the comments; and
  • Linfox did not have a social media policy in place. The extract of the policy that Linfox used to rely on when dismissing Mr Stutsel was not sufficient.

The Commissioner took into account that Linfox’s approach to misuse of social media had not been applied consistently amongst employees.

The Commissioner also took into consideration Mr Stutsel’s age, employment record and job prospects. The Commissioner found that the dismissal was harsh, unjust or unreasonable. Linfox were ordered to reinstate Mr Stutsel and required them to make a payment for the wages lost by Mr Stutsel.

Linfox appealed this decision.

Appeal: Decision by the Full Bench, Fair Work Australia

On appeal Linfox submitted that Commissioner Roberts had made a number of errors when deciding the outcome of the initial trial. Linfox argued that the appeal raised serious public interest issues, namely, the intersection between social networking sites and employee conduct on these sites.

The Full Bench granted Linfox’s right to appeal. When considering the matter on appeal the Full Bench considered:

  • Whether the termination was harsh, unjust or unreasonable;
  • Whether there was valid reason for termination; and
  • Whether reinstatement was the most appropriate remedy.

The Full Bench noted the following:

  • Posting derogatory comments on Facebook may amount to conduct that equates to termination, however, each of Mr Stutsel’s comments needed to be looked at independently;
  • Commissioner Roberts’ comment about Facebook posts being akin to a conversation in a pub was not correct, because Facebook posts have a much larger audience (Mr Stutsel had 170 Facebook friends);
  • The comments made by Mr Stutsel were distasteful, however, given the context in which they were said, did not amount to a credible threat against the persons identified; and
  • Some of the comments were not in fact made by Mr Stutsel.

The Full Bench affirmed the decision by Commissioner Roberts; that is the dismissal was unfair, and the appeal was dismissed.

The Full Bench reached this conclusion even though the comments were “childish and objectionable” and “reflected poorly on those who participated in the conversation complained about”.

The comments were made on Facebook and were to be considered in context, and did not amount to conduct of such an “extreme nature that would justify dismissal for serious misconduct”.

Mr Stutsel’s lack of understanding of Facbook’s privacy settings was also considered, however, it was noted that the increased use and understanding of Facebook in society, as well as social media policies being implemented in the workplace, meant that lack of knowledge on Facebook’s privacy settings “may be given less weight in the future”.

Conclusion

Having a sound social media policy may prevent a number of issues that can potentially arise out of misuse of social media. These are:

  • Breakdown of employment relations;
  • Damage to an employer’s business interest and / or reputation;
  • Productivity of employees; and
  • Increase in workplace harassment and bullying.

It is crucial that a policy is relevant and modern, it is known amongst employees, and it is applied consistently and impartially.

This case highlights how important it is for employers to have social media policies and responses in place. Having a policy will not only protect employers and their business interests but employees will be aware of their employers’ expectations in relation to use of social networking.