Linfox was entitled to be concerned when it received a report that an employee had posted racist, sexist and threatening comments about two managers on Facebook.
Confident that its HR investigation had established serious misconduct, the employer dismissed the “offending” employee in what appeared a relatively straight-forward process.
Rather than being an end of the matter, the dismissal sparked a legal fight that culminated in an appeal decision which went against the employer [1].
Background
In this case, the employee had made what Fair Work Australia described as “distasteful, uncomplimentary and disgusting” comments about two of his managers on his publicly listed Facebook profile.
Further comments of a “sexual” nature were made by one of the employee’s Facebook “friends” in the course of the conversation. The employee’s other Facebook friends included employees of the company.
The employee gave evidence he was under the (mistaken) impression his profile had the highest level of privacy. In reality, his comments were actually public and accessible by a very wide audience.
In the employee’s favour, Linfox lacked a comprehensive social media policy and his claims of ignorance about how Facebook’s privacy setting worked were accepted by FWA.
In a ‘double-whammy’ effect, FWA found (1) the employee not guilty of serious misconduct and (2) that there was not a valid reason for his dismissal.
FWA went on to say that even if comments made were a valid reason for termination, dismissal would have still been harsh, unjust or unreasonable based on a number of personal circumstances such as the length of his employment, the age of the employee, his ignorance of the technology and the lack of discipline for other comment posters.
What should employers take away from this case?
An employee who posts derogatory, offensive or discriminatory statements or comments about managers or co-workers on social media may provide a valid reason for termination but the enquiry will be on a case-by-case basis as to the nature of the comments and statements made and the width of their publication (and to whom they were made).
As was shown in this case, it can be more difficult to show that an employee was misusing social media if there is no workplace policy in place that sets out an employer’s expectations and warns of the consequences of publishing derogatory comments on social media.
If the right questions are not asked during an investigation into social media misconduct, employers are at risk of an offending employee being able to later claim ignorance about the public nature of social media and the accessibility to offending comments by others.
[1] Linfox Australia Pty Ltd v Stutsel [2012] FWAFB 7097
