A truck driver with 22 years employment with an ‘extremely good’ record was dismissed by Linfox because of ‘serious misconduct’ following complaints about comments made on the driver’s Facebook page about two of the company’s managers.
The truck driver, who mistakenly believed his Facebook account was set to the highest available privacy settings and that the comments could only be seen by his 170 friends (many of which were also employees of the company), had material on his wall which included:
- a remark that his manager, who was a practising Muslim, was a “bacon hater”;
- uncomplimentary material about Linfox managers; and
- comments of a sexual nature posted about a female manager.
In agreeing with Commissioner Roberts’ (who first heard the matter) decision that the conduct amounted to serious misconduct, the full bench stated that in considering whether the posting of derogatory, offensive and discriminatory statement or comments about employees on Facebook provided a valid reason for termination, an enquiry into the nature of the comments and the width of their publications is necessary.
The full bench noted that Facebook conversations left permanent written records which might easily be forwarded onto others, the effect of which widens the audience beyond the author’s friends. Despite the width of the publications, the bench agreed that objectively considered in their proper context, they were not of such a serious or extreme nature that would justify dismissal for serious misconduct. The full bench agreed that:
- many of the comments on the driver’s wall were made by fellow employees rather than the driver;
- comments had a characteristic of “friends trying to outdo one another in being outrageous”;
- some comments were either exaggerated, stupid or an attempt at humour and could not have constituted a genuine threat against the managers; and
- although made in poor taste, the driver’s comments were not racially derogatory and were not intended to be hurtful.
In addition, the full bench agreed that the termination was also “harsh, unjust or unreasonable” for the purposes of s385(b) of the Fair Work Act 2009. Whilst the termination was procedurally fair, in that the driver was afforded a support person to be present at the time of termination and was given an opportunity to respond, consideration was not had for the length of service of the driver, his age, his excellent record with the company, or his misapprehension of the privacy settings of his Facebook page.
The fact that the company failed to take actions against any of the other employees who also made comments on the driver’s wall also weighed towards a finding of unreasonableness.
In handing down their judgment, full bench cautioned that Facebook savvy users may not be able to rely on similar arguments of ignorance of their Facebook’s settings, stating:
…with increased use and understanding about Facebook in the community and the adoption by more employers of social networking policies, some of [the mitigating factors] may be given less weight in future cases.
Linfox did not have policy on the use of social media by employees. Businesses can help prevent contentious and complex claims in this area by ensuring that their social media policies are sufficiently detailed so employees can understand what an acceptable use of social media both inside and outside of the workplace is.
Linfox Australia Pty Ltd v Glen Stutsel  FWAFB 7097.
For further judicial consideration in unfair dismissal cases involving social media please see:
- O’Keefe v Williams Muir’s Pty Limited T/A Troy Williams The Good Guys  FWA 5311
- Dover-Ray v Real Insurance Pty Ltd  FWA 8544
- Fitzgerald v Dianna Smith t/as Escape Hair Design  FWA 7358