Employee reinstated despite inappropriate use of social media

Introduction

As the use of social media becomes more prevalent, some interesting case law is emerging regarding what is or isn’t acceptable behaviour in relation to comments surrounding the workplace. In the following decision, an employee was reinstated despite making inappropriate comments about his managers and his employer on Facebook.

Background

Mr Stutsel was employed by Linfox Australia Pty Ltd (Linfox) as a truck driver in April 1989. He was also undertook the role of TWU union delegate. Mr Stutsel did not have any record of prior warnings although evidence was submitted by a Linfox manager that he previously counselled Mr Stutsel regarding him making inappropriate comments regarding religion.

As part of Linfox's induction training it provided employees with an induction booklet which outlined the Linfox Equal Opportunity and Diversity Policy. Mr Stutsel had participated in the induction training and also had access to the Equal Opportunity and Diversity Policy. Linfox at this time, did not have a policy regarding the use of social media by employees.

In around May 2011, Linfox became aware that Mr Stutsel had posted several inappropriate comments on Facebook including:

• comments that Linfox managers were dishonest and underhanded;
• comments of a sexual nature and suggesting that a female Linfox manager was providing sexual favours to other Linfox employees;
• comments in relation to a Linfox manager's religious orientation and Muslims in general referring to him as a "certain bacon hater "; and
• general derogatory comments regarding Linfox.

Mr Stutsel's Facebook profile picture was a Linfox truck.

Upon becoming aware of the comments, Linfox commenced an investigation into the matter and terminated Mr Stutsel's employment due to serious misconduct on the basis that he had made;

• racially derogatory remarks regarding one of his managers;
• remarks regarding one of his managers which amounted to sexual discrimination and harassment; and
• extremely derogatory remarks regarding his managers.

Due to Mr Stutsel's long service, Linfox paid out his notice period.

Decision in the first instance

In the initial hearing, Commissioner Roberts determined that Mr Stutsel's termination was harsh, unjust and unreasonable as Linfox did not have a valid reason for terminating Mr Stutsel's employment. Further, he was not guilty of misconduct as:

• he made the comments in the belief that he had maximum privacy settings on his Facebook;
• he had expressed his private views at the time and had later come to regret making those comments;
• the comments although in poor taste, were not derogatory and Mr Stutsel had a right to free speech;
• many of the comments "had the favour (sic) of a conversation in a pub or café" and any external reader not connected with Linfox would have difficulty determining who the comments were made about;
• although the comments relating to sexual discrimination and harassment were not appropriate, the main offending comments were made by Mr Stutsel's Facebook friends and not Mr Stutsel; and
• Linfox did not have a social media policy in place and could not seek to rely on the Equal Opportunity and Diversity Policy in this instance.

Commissioner Roberts made orders that Mr Stutsel be reinstated with full continuity of employment and compensated for lost wages from the time of his dismissal.

Decision on appeal

Linfox lodged an appeal of the decision on the basis that:

• Commissioner Roberts relied on irrelevant considerations such as mitigating Mr Stutsel's culpability;
• gave no or insufficient consideration to the relevant facts and made errors of fact;
• placed undue emphasis on the right of free speech; and
• gave inadequate reasons regarding why reinstatement was the appropriate remedy and failed to take into account that Mr Stutsel had been paid his notice in making the back payment order resulting in a windfall.

The Full Bench found:

• the comments made by Mr Stutsel amounted to more than having the "flavour of a conversation in a pub or café" as they were conducted in electronic form, held a different characteristic and had a potentially wider circulation. Further the comments might easily be forwarded to others providing even a wider circulation; but
• the overall assessment of the gravity of Mr Stutsel's conduct and the context in which it occurred was not sufficient to provide Linfox with a valid reason for dismissal. "The comments were childish and objectionable, and reflect poorly on those who participated in the conversations complained about. However, when the statements and comments posted on the Facebook page were objectively considered in their proper context they were not of such a serious and extreme nature as would justify dismissal for serious misconduct

Further, the dismissal was harsh, unjust and unreasonable taking into account:

• Mr Stutsel's long period of satisfactory performance with Linfox;
• Mr Stutsel's belief that the Facebook page had maximum privacy settings and that the comments were never intended to be communicated to the managers;
• the conduct occurred outside of work hours and outside of the workplace;
• Mr Stutsel did not know he could delete comments his friends had made on Facebook;
• Linfox had not taken action against other employees who had taken part in the Facebook conversation; and
• Mr Stutsel understood that his comments were foolish and regreted it had occurred.

The Full Bench further commented that "The claim of ignorance on the part of an older worker, who enthusiastically embraced the new social networking media but without fully understanding the implication of its use, might be more viewed differently in the future."

The Full Bench of FWA dismissed the appeal.

Conclusion

This matter is currently listed on further appeal in the Federal Court of Australia.

Regardless, the case demonstrates the importance for employers to ensure that: 

• they have a comprehensive and robust policy in place regarding the use of social media and inappropriate comments regarding the employer or its employees, clients or contractors;
• ensuring the policy is communicated and reinforced on a regular basis to all employees (including education programs where possible); and
• where relevant incorporates other relevant policies eg Workplace Diversity, EEO, Sexual Harassment or Bullying.

If you would like more information about the case or assistance drafting any appropriate policy, please contact National Workplace Lawyers on +61 2 9233 3989. 

National Workplace Lawyers

Note — this is for information purposes only and does not purport to be comprehensive or to render legal advice.