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Linfox Australia has appealed against the recent controversial
decision of Glen Stutsel v Linfox Australia Pty Ltd [2011]
FWA 8444, where an employee was reinstated following the
termination of his employment for posting offensive comments about
his managers on Facebook.
What does this mean for employers?
Pending outcome of the appeal, the decision at first instance
should be viewed with caution. While in this case it was found the
employee's comments were not public and therefore did not
justify the termination of the employee's employment, other
recent decisions have held that comments made through social media
are considered public and may justify termination of
employment.
Although social media use by employees is considered out of
hours conduct, an employer can exert control over its use where the
employee's conduct is either: likely to cause serious damage to
the relationship between the employer and employee, damaging to the
employer's interests or incompatible with the employer's
duty as an employee. An employer may be able to dismiss an employee
where their comments on social media fit into one of these
categories.
The case in brief
Mr Stutsel, who was employed by Linfox as a truck driver for 22
years, brought an unfair dismissal claim after his employment was
terminated for comments made about his managers on his Facebook
page.
Stutsel posted comments and participated in a conversation about
the race of one of his managers. Another employee (and Facebook
friend) had made comments of a sexual nature about another Linfox
manager on Stutsel's Facebook page, which Stutsel failed to
delete.
Stutsel gave evidence that his Facebook account had been set up
by his wife and daughter with what he thought were full privacy
restrictions. He believed that nothing he said could be seen by
anyone except the people he had invited to be his Facebook
friends.
He also claimed that he was unaware that he could delete another
person's posts on his page and made no attempt to prevent his
friends from making continued derogatory comments.
Commissioner Roberts accepted Stutsel's evidence and noted
that his Facebook page was not intended to be on public display or
a public forum. Rather, Commissioner Roberts likened the postings
to a 'conversation in a pub or café'. It was held
that any external reader not familiar with Linfox would have
considerable difficulty in making out who and what the comments
were about.
Whilst Linfox sought to rely on its induction training and
relevant anti-discrimination policies (which provided that
employees 'must ensure no one is unlawfully discriminated
against or harassed') to justify Stutsel's dismissal,
Commissioner Roberts held that this was not sufficient and that
large companies, like Linfox, should be utilising social media
policies.
To be treated with caution
While in this case Stutsel's comments were not found to be
'public' and did not justify the termination of his
employment, several previous decisions involving an employee's
use of social media have resulted in a different outcome:
In Fitzgerald v Smith [2010] FWA 7358, a disgruntled
employee made negative comments about, among other things, her pay
for the Christmas holidays. The tribunal held that a Facebook
communication is not only amongst friends and can be seen by an
'uncontrollable number of people' making it no longer a
private matter but rather 'public comment'. Therefore,
where it can be shown that a comment breaches an express term of an
employee's contract of employment, this will provide a ground
for dismissal.
In O'Keefe v Williams Muir's Pty Limited
[2011] FWA 5311, negative comments were made by an employee of The
Good Guys on Facebook regarding an error in his pay. Whilst his
Facebook page was set to its maximum privacy setting, his work
colleagues could still view the comments. It was found that it does
not matter that comments are made on a home computer and out of
work hours if they can still be read by work colleagues.
On appeal, Linfox has argued that this decision in effect
creates a 'free-for-all' within the workplace where an
employee forms a view that they can make comments of an insulting
nature with 'absolutely no ramifications'. The appeal
hearing has been adjourned.
Tips for employers
Employers should be implementing appropriate social media
policies to specifically deal with not only the use of social media
at work, but inappropriate employee conduct on social media
forums.
Once these policies are in place, employers need to ensure that
all staff and management are given ongoing training on these
policies, so that they can be relied upon in the event of
disciplinary action or to justify dismissal.
If an employee is using social media to voice their workplace
concerns, ensure that a fair process is used to deal with the
situation (including appropriate warnings) and that the
disciplinary process is documented, particularly if the employee
falls within the unfair dismissal jurisdiction.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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A court has determined that an employee had a workplace right under the Fair Work Act 2009 to make a complaint entitling the employee to proceed with her general protections claim.
