A Full Bench of FWA has upheld an earlier decision of FWA which ordered an employer to compensate and reinstate an employee who was dismissed after allegedly making offensive and derogatory remarks about his managers on his Facebook page.

At the first hearing, FWA held that the comments could be characterised as “an attempt at humour”, rather than threatening, and did not constitute a valid reason for dismissal.

On appeal, the Full Bench affirmed this decision on the basis that it was open for FWA to characterise the comments as it did and there were “special circumstances” which rendered the dismissal unfair, including the:

  • employee’s lack of understanding about Facebook;
  • employer’s lack of social medial policy; and
  • employer’s unequal treatment of employees who made similarly offensive comments on the page.

It affirmed that reinstatement was appropriate as the employee would not come into contact with the relevant managers. However, the Full Bench distanced itself from FWA’s characterisation of the Facebook comments as being like “friends letting off steam” as they would “in a pub or café”. It emphasised the need for employees to “exercise considerable care in using social networking sites in making comments or conducting conversations about their managers and fellow employees” because such postings might provide a valid reason for termination of employment.

The employer has indicated it will appeal the Full Bench’s decision to the Federal Court.

Linfox Australia Pty Ltd v Glen Stutsel [2012] FWAFB 7097