Tim McDonald
Principal
Employment
Paid family and domestic violence leave commencing 1 February 2023
30 January, 2023
A brief look at decisions involving termination of employment for conduct involving social media reveals that employers often take swift disciplinary action following what they consider to be inappropriate conduct on social media by an employee. However, whether a dismissal is justified depends on both the nature of the conduct and the subsequent actions of the employer. In this article, we look at two decisions of the Fair Work Commission dealing with the dismissal of employees for conduct involving social media.
While employers do not have unfettered power to regulate their employee’s private social media use out of hours, they do retain some control if a sufficient connection between the conduct and work can be established and proper procedure is followed, as these decisions of the Fair Work Commission demonstrate.
Example 1: Dismissal based on Facebook messages deemed fair (Colwell v Sydney International Container Terminals Pty Limited [2018] FWC 174
The Fair Work Commission (FWC) recently found that conduct that “materially affects”, or has the potential to “materially affect”, a worker’s employment is a matter that legitimately attracts the employer’s attention and intervention.
Wharf worker Luke Colwell was dismissed by his employer Hutchison Port Holdings (HPH) after it found that Mr Colwell had engaged in serious and wilful misconduct in breach of the company’s bullying and harassment policy. After consuming alcohol on a rostered day off, Mr Colwell sent a short video depicting a naked woman simulating a sexual act via Facebook Messenger to his Facebook friends, including 19 work colleagues.
Despite not receiving any formal complaints from recipients of the message, HPH commenced an investigation and subsequently terminated Mr Colwell’s employment due to a finding of serious and wilful misconduct including breach of company policy.
In applying to the Fair Work Commission for an unfair dismissal remedy, Mr Colwell argued that the employer did not have a valid reason for dismissal, as the conduct in question had been sent during his free time and therefore did not have a sufficient connection to his employment.
In turn, the employer argued that the dismissal was lawful given Mr Colwell’s breach of their zero-tolerance workplace bullying and harassment policy. HPH further argued that while Mr Colwell sent the messages out of work hours, he was Facebook friends with his colleagues solely because of their common employment at HPH. Accordingly, HPH asserted that the dismissal was not harsh, unjust or unreasonable as Mr Colwell’s conduct in sending the video constituted a valid reason for termination of Mr Colwell’s employment.
Valid reason for dismissal
Existing case law demonstrates that a valid reason for dismissal may exist if there is a connection between the employee’s out-of-hours conduct and the employment. On this basis, Commissioner McKenna accepted HPH’s submission that there was a sufficient connection between the conduct on social media and the employment, concluding that where there is a “relevant nexus or “connection” between the out of hours conduct and the interests of the employer… an employer is warranted in conducting an investigation into those matters”. Accordingly, the FWC upheld the dismissal, on the basis that sending the video to his colleagues had a sufficient nexus with his employment because, but for the employment, Mr Colwell would not have been friends with his colleagues on Facebook.
Example 2: Dismissal based on Facebook post was rendered “unfair” (Somogyi v LED Technologies [2017] FWC 1966)
LED Technologies, a Victorian automotive lighting manufacturer, summarily dismissed Mr Colby Somogyi in August 2016 by way of a brief phone call. Mr Somogyi was later informed that his dismissal was the result of a status he posted on Facebook, criticising a co-worker and the legitimacy of her role, stating:
“I don’t have time for people’s arrogance. And your [sic] not always right! your position is useless, you don’t do anything all day how much of the bosses c**k did you suck to get were [sic] you are?”.
The status was quickly replaced with a “clarified” lengthy and expletive ridden rant, which claimed the post was directed as support for his mother who was allegedly being bullied by a co-worker. The FWC considered the relevant criteria for determining whether the dismissal was harsh, unjust or unreasonable including, primarily, if there was a valid reason for the dismissal related to the person’s capacity or conduct, whether the person was notified of that reason, and if they were given a chance to respond.
Commissioner David Gregory held that while the post was “undoubtedly crude and immature”, nothing definitively indicates that the post was directed at LED Technologies’ business or its employees. Further, Mr Somogyi’s hours were flexible, and there was no evidence that the post wasn’t made while on a break. Mr Somogyi denied being made aware of a firm social media policy.
Commissioner Gregory also mentioned with regret the increasing use of “offensive” and “vulgar” language as part of everyday vernacular, noting that the common use of such language in the LED Technologies workplace “tempered” the weight of their concerns regarding the Facebook post. On this basis the Commissioner found it difficult to hold the Facebook post as a valid reason for Mr Somogyi’s dismissal.
Reason for the decision and opportunity to respond
Mr Somogyi also argued his dismissal was unfair as he was not given an opportunity to respond. The FWC noted “obvious issues” in how Mr Somogyi was dismissed, including failure by LED Technologies to give Mr Somogyi a chance to respond to the allegations about his conduct. The Commissioner held that despite LED Technologies’ limited HR expertise, employees faced with dismissal have a reasonable expectation of being provided with both the reason for the decision, and an opportunity to respond before the decision is confirmed.
Outcome
Mr Somogyi did not seek to be reinstated in his former position, with the FWC agreeing that the complete breakdown in relationship between the parties would not be conducive to reinstatement. On this basis, the FWC opted to compensate Mr Somogyi for losses reasonably attributable to the dismissal, awarding him $6,238 in compensation. This amount accounted for the difference in Mr Somogyi’s current and former income over a 6-month period, and time spent without work following the dismissal.
Key take-aways
These cases offer guidance to employers on the interaction between an employee’s inappropriate use of social media and grounds for dismissal. The decisions highlight that while employee conduct may be considered anti-social and inappropriate, such behaviour does not automatically amount to grounds for dismissal and so care must be taken to ensure any staff dismissal is not harsh, unjust or unreasonable based on the criteria set out in the FW Act. This may involve an investigation into the conduct before a decision to dismiss is made.
The decisions also highlight the growing need for employers to implement a robust social media policy that covers social media use both during and after work hours, in addition to a bullying, harassment and discrimination policy. Employers must also ensure all staff are aware of the relevant policies.
On 22 March 2018, McCabes’ Employment and Intellectual Property & Technology groups are presenting a breakfast seminar on the risks that social media can present to businesses.
The seminar will focus on a range of issues relating to the use of social media as a business marketing tool, as well as the risks associated with the use of social media by your employees.
Further details about the seminar and how to RSVP can be found here.
