- In a recent FWA decision, an employee was reinstated following termination for allegedly derogatory and harassing comments about managers posted on his Facebook page.1 Roberts C 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.
- In finding that the employer had no valid reason to terminate the employee, Roberts C strongly considered the employer’s failure to implement a dedicated social media policy prior to and following the incident.
- Employers should take proactive steps to ensure that contracts of employment, policies, training modules and complaints procedures are structured to minimise the risk of termination for inappropriate social media use being found to be unfair.
- In particular, employers should ensure that relevant policies and training modules define acceptable and prohibited use of social media (covering both work-related and personal use), give relevant and up-to-date examples of what is considered to be acceptable and unacceptable use, and clearly state the consequences of breach.
Mr Stutsel was employed by Linfox as a truck driver from April 1989 until his employment was terminated for serious misconduct on 31 May 2011. Linfox terminated Mr Stutsel’s employment on the basis of a series of statements on Mr Stutsel’s publicly available Facebook page which, in Linfox’s view, amounted variously to racial vilification of one of his managers, sexual harassment of another manager and intimidation of both managers.
Mr Stutsel argued that his Facebook account was created with maximum privacy restrictions and was not at the time open to the public, and that his managers’ ability to access the page must have been the result of a unilateral change of settings by Facebook earlier in 2010. He also argued that his managers accessed his account without his knowledge or consent.
Mr Stutsel denied having made any extremely derogatory comments about his managers, arguing that the comments were merely examples of inappropriate and regrettable workplace banter. He further argued that the comments amounting to sexual harassment were posted on his page by two other Linfox employees who had not been disciplined.
Linfox argued that a sufficient nexus existed between Mr Stutsel’s conduct and the workplace because:
- Mr Stutsel had Facebook friends who were employees of Linfox,
- the comments were made in respect of various Linfox managers, and
- Mr Stutsel’s Facebook profile picture featured a Linfox truck.
Linfox further argued that the absence of a dedicated social media policy did not change the fact that the employee handbook set clear expectations of employee behaviour which Mr Stutsel ignored.
The commissioner accepted that Mr Stutsel believed comments posted on his page could only be viewed by himself and his Facebook friends.
The commissioner found that the comments in context appeared to be ‘a group of friends letting off steam and trying to outdo one another in being outrageous’, and had ‘much of the flavour of a conversation in a pub or cafe, although conducted in an electronic format’. The commissioner noted that the racial and religious references were clearly in poor taste but could not amount to being a racially derogatory remark intended, or acting to, vilify the manager on racial grounds. Similarly, the other derogatory comments were ‘an attempt at humour…and did not contain any credible threat’.
By contrast, the commissioner found that the other manager was entitled to complain about the comments of a sexual nature made in relation to her. However, the commissioner noted that the comments had not been posted by Mr Stutsel but by other Linfox employees. While the commissioner agreed with Linfox that Mr Stutsel could have posted a comment disassociating him from the comments, the commissioner gave weight to the fact that he did not make the offending comments, and found Linfox’s decision to take action against Mr Stutsel rather than against their author to be ‘more than passing strange’.
In concluding that Mr Stutsel had been unfairly dismissed and ordering his reinstatement and back pay, the commissioner gave weight to Linfox’s lack of a dedicated social media policy at the time of Mr Stutsel’s termination or by the date of the hearing, and that Linfox merely relied on its induction training and relevant handbook to ground its action against Mr Stutsel.
Linfox was subsequently granted a stay of the decision on 22 December 2011 pending an appeal. The appeal commenced before a Full Bench on 22 February 2012 and is yet to be concluded.
WHAT DOES THIS DECISION MEAN FOR EMPLOYERS?
This decision clearly underscores our previously expressed view2 regarding the critical importance of a targeted and up-to-date social media policy when considering disciplinary action against employees for inappropriate use of social media.
The decision also shows the range of outcomes reached by FWA under similar factual circumstances in this newly developing area. Strong parallels can be drawn between both the relevant conduct and the employer’s policy approach in this case and those in O’Keefe v Williams Muir’s Pty Limited T/A Troy Williams The Good Guys3which we recently reviewed.4 However, whilst Roberts C in the current case found the relevant posts not to justify termination, Swan DP in O’Keefe found them to constitute serious misconduct.
In light of these differing approaches, employers should take proactive steps to ensure that contracts of employment, policies, training modules and complaints procedures are structured to minimise the risk that termination for inappropriate social media use is found to be unfair. Amongst other things, these steps include ensuring that relevant policies and training modules define acceptable and prohibited use of social media (covering both work-related and personal use), give up-to-date examples of acceptable and unacceptable use, and clearly state the consequences of breach. Further, contracts of employment should expressly require employees to comply with relevant policies.
This article was written by Kate Jenkins, Partner and Andrew Pollock, Solicitor, Melbourne.
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