Summary

  • The Full Bench of Fair Work Australia has dismissed Linfox’s appeal against the reinstatement of an employee who was terminated for misuse of social media.1
  • While this decision provides a limited framework for assessing the severity of social media misuse, it potentially raises the bar for employers seeking to terminate an employee for social media misuse.
  • The decision – in particular the observation that an employee’s ignorance of the implications of social media misuse may be given less weight as more employers adopt social media policies – underscores our previously expressed view that a targeted, up-to-date and consistently applied policy is critically important when considering disciplinary action against employees for inappropriate use of social media.

Background

Mr Stutsel was employed by Linfox as a truck driver between April 1989 and the termination of his employment on 31 May 2011. Mr Stutsel’s employment was terminated for serious misconduct following the posting of comments about two of his managers on his Facebook profile page.

The comments posted on Mr Stutsel’s Facebook page regarding the managers were offensive, derogatory and discriminatory, and included suggestions of dishonest and underhanded conduct, and comments of sexual misconduct.

Commissioner Roberts at first instance found the comments to be akin to ‘a group of friends letting off steam and trying to outdo one another in being outrageous’, and whilst in poor taste did not amount to serious misconduct.

We have previously discussed the relevant comments and the decision of Commissioner Roberts at first instance.2

The appeal

Linfox argued on appeal that in deciding that the dismissal was unfair, the Commissioner:

  • relied on irrelevant considerations as mitigating Mr Stutsel’s culpability;
  • gave no or insufficient consideration to relevant facts and made errors of fact; and
  • placed undue emphasis on a purported right to free speech.

Linfox also appealed Commissioner Roberts’ orders of reinstatement and back pay.

The decision

The Full Bench dismissed Linfox’s appeal, finding that Commissioner Roberts’ decision that there was no valid reason for termination was reasonably open to him in the circumstances and that the remedies ordered by the Commissioner were appropriate.

In doing so, the Full Bench outlined a number of key principles to be applied in assessing the validity (or fairness) of a dismissal for misconduct based on misuse of social media:

  • Importantly, the Full Bench found that the posting of derogatory, offensive and discriminatory statements or comments about managers or other employees on Facebook might provide a valid reason for termination of employment. In each case, the enquiry will be as to the nature of the comments and statements made and the width of their publication. In this regard, the Full Bench was mindful of the need not to impose unrealistic standards of behaviour or to ignore the realities of workplaces.
  • The Full Bench did not altogether agree with Commissioner Roberts’ assessment of the relevant Facebook conversations as ‘having the flavour of a conversation in a pub or café’. The Full Bench observed that the electronic form of the conversations gave the comments a different characteristic and a potentially wider circulation than a pub discussion. The Full Bench noted that employees ought exercise considerable care in using social networking sites, highlighting the fact that the relevant comments were published to a wide audience (including Linfox employees), the ease of forwarding comments on to others and the permanent nature of those comments. This suggests the Full Bench may have decided the ‘valid reason’ point differently if they were permitted to rehear the matter.
  • The Full Bench identified a number of ‘other matters’ which supported Commissioner Roberts’ decision at first instance that the dismissal was ‘unfair’. These matters included the following:
    • The long period of Mr Stutsel’s employment (22 years), his age and his employment prospects;
    • Mr Stutsel’s belief that his Facebook page was on maximum privacy settings and that the comments posted on his page could only be viewed by himself and his Facebook friends, and the finding that the comments were never intended to be communicated to the managers concerned;
    • The conduct complained about occurred outside of the workplace and outside of working hours;
    • Some of the statements complained about on the Facebook page were made by others, and that Mr Stutsel did not know that he could delete comments made by others once they had been posted; and
    • Linfox did not take action against other employees who took part in the relevant Facebook conversations.

Importantly, the Full Bench noted that some of these factors may be given less weight in future cases in light of increased use and understanding about Facebook in the community and the adoption by more employers of social networking policies.

Implications for employers

While the decision provides a limited framework for assessing the severity of social media misuse – an assessment of the nature of the comments and statements made and the width of their publication – the Full Bench’s concern around imposing unrealistic standards of behaviour potentially raises the bar for employers seeking to terminate an employee for social media misuse when compared with previous decisions.

Although cases in this area largely turn on their own facts, this decision underscores our previously expressed view that a targeted, up-to-date and consistently applied policy is critically important when considering disciplinary action against employees for inappropriate use of social media. In this case, the Full Bench considered Linfox’s lack of a dedicated social media policy and selective application of its disciplinary policy to the employees involved to be particularly relevant.

Of greater ongoing significance is the Full Bench’s view that employee ignorance of the implications of social media misuse may be given less weight over time as more employers adopt social media policies. Employers can best protect their position (and their right to legitimately discipline employees) by implementing and effectively communicating dedicated social media policies to employees. However, a breach of even the most sophisticated policy does not mean that a termination in all cases will be ‘fair’. All relevant matters must be considered in this context, and particularly so where employees have access to the unfair dismissal regime.