Dismissal for social media posts not unfair – Fair Work Commission

The Fair Work Commission has handed down a decision that found an employee’s dismissal for out of hours Facebook posts was not unfair despite the employer not having a relevant social media policy and not providing a sufficient opportunity to respond.

The Australian Council of Trade Unions (ACTU) had a progressive agenda in advocating and supporting a range of progressive social issues including in the areas of diversity, racism, domestic violence and LGBTQIA+. It had also encouraged vaccination against COVID-19 and compliance with public health orders.

The employee was dismissed by the ACTU for serious misconduct regarding a series of ‘out of hours’ posts he made on his personal Facebook page including:

  • ‘F*** the Jab’ post regarding the 20 September 2021 anti-vaccination riots in Melbourne;
  • using the term ‘NIBBA’ in relation to the Black Lives Matter movement;
  • sharing a video of a police officer being assaulted with comments “cheering on” the offender; and
  • claiming the transgender community has a world-wide agenda to harm children.

It was the ACTU’s position that, due to the risk they posed to health and safety and its reputation, the posts constituted serious misconduct.

Out of hours conduct

In determining if the fact that these posts were made out of hours was relevant, Deputy President Masson relied on the “definitive Commission authority” on the matter: Rose v Telstra Corporation Limited [1998] AIRC 1592 which states that an employee may be dismissed for out of hours conduct in limited circumstances where:

  • the conduct is such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or
  • the conduct damages the employer’s interests; or
  • the conduct is incompatible with the employee’s duty as an employee.

Deputy President Masson also considered numerous other cases involving out of hours social media use and noted the following principles that can be of assistance in determining whether it amounts misconduct:

  • Rose v Telstra and the principles set out therein remains the key authority in assessing the out of hours conduct of a dismissed employee;
  • Commonwealth public servants’ out of hours conduct including the private use of social media may be subject to greater constraints by reason of such employees’ employment being regulated by statute;
  • the existence of an employer’s policy governing out of hours social media usage of an employee may not be essential to finding that out of hours social media conduct constitutes serious misconduct;
  • the operation of a social media policy to only within an employee’s ordinary hours of work would be impractical; and
  • the fact that an employee’s social media posts may be anonymous or limited in terms of its initial distribution may be irrelevant once the post is made publicly on a social media platform.

Code of conduct was helpful, social media policy not so much

The social media policy that applied at the time the employee made the posts only related to conduct on ACTU IT equipment and services. The Deputy President found that it did not apply to employees’ use of their own equipment for private out of hours social media use.

On the other hand, the ACTU’s code of conduct required employees to conduct themselves in a way that does not impact negatively on its reputation. It also instructed employees to consider the impact of their actions in public even when not on duty and specifically referred to out of hours behaviour.

The Deputy President found that the posts were in clear breach of the code of conduct.

Facebook presence and no identifiers

The Employee argued that it was unlikely his “obscure” Facebook page would be linked back to the ACTU because:

  • he only had 70 friends on Facebook; and
  • he did not:
    • name the ACTU;
    • identify himself as an ACTU employee; or
    • provide his location.

The Deputy President stated that, just because his posts did not go viral, it did not make his conduct less serious. It was the ‘risk’ of the damage that could have been caused that was a significant factor. Also, it didn’t help the employee that his account was set to public, as this indicated that “he was content for his posts to be shared”.

Fidelity to the employer

The Deputy President also commented that, had the policies not applied to him, he had still breached the implied duty of fidelity he had towards the ACTU. This was because of the gravity of the posts and the risks they posed to the ACTU’s reputation.

Lack of procedural fairness

At the show cause meeting, the employee was told that the posts were incompatible with the ACTU’s values. However, he was never informed as to how they were incompatible, or which policies they breached.

Also, his request for the allegations to be put in writing was declined because it would have resulted in the matter not being dealt with in a timely manner. The Deputy Commissioner was not satisfied that this was so because of the speed of the process as the ACTU held the show cause meeting within 24 hours of discovering the posts. It was “difficult to see how a short delay to allow for the allegations to be put in writing to enable a considered response by the Applicant would have been problematic”.

As such, the Deputy President concluded that the employee was not provided with sufficient details regarding the polices and values he had breached. It was determined that he was not provided with an opportunity to respond.

However, the Deputy President gave this significantly less weight than the presence of the valid reason. He regarded it as “highly unlikely” the outcome would have been different if the ACTU had given him more details of the policies he had breached and put allegations in writing. This was because the employee had “shown no insight or contrition for his conduct” throughout the FWC proceedings. The employee kept justifying his posts as exercising his “unfettered right” to air his personal beliefs and speaking truth to power.

Key take aways

If an employer has certain values, it is always best to ingrain them in its policies.

Codes of conduct and other policies should be explicit regarding out of hours conduct creating risks to the employer’s reputation.

Social media policies should apply to an employee’s use of social media regardless of whether it is on equipment owned by the employer. It should focus on ‘what you post’ instead of ‘what computer/phone/tablet you used to post it’.

During the show cause process provide sufficient detail regarding:

  • the misconduct itself;
  • what policy has been breached;
  • how the misconduct has breached that policy; and
  • put all of the above in writing and provide it to the employee prior to the meeting.

More information

If you have any queries or would like further information regarding this article, please contact:

Joe Mullavey
M: 0416 794 061
E: jmullavey@pageseager.com.au

Peter Foster
T: (03) 6235 5153
E: pfoster@pageseager.com.au

Published: 6 July 2022

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