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.


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.

Recent Insights

View all
Litigation and Dispute Resolution

Canadian Court elevates thumbs-up emoji to signature status

In June 2023, a Canadian Court in South-West Terminal Ltd v Achter Land and Cattle Ltd, 2023 SKKB 116, held that the "thumbs-up" emoji carried enough weight to constitute acceptance of contractual terms, analogous to that of a "signature", to establish a legally binding contract.   Facts This case involved a contractual dispute between two parties namely South-West Terminal ("SWT"), a grain and crop inputs company; and Achter Land & Cattle Ltd ("ALC"), a farming corporation. SWT sought to purchase several tonnes of flax at a price of $17 per bushel, and in March 2021, Mr Mickleborough, SWT's Farm Marketing Representative, sent a "blast" text message to several sellers indicating this intention. Following this text message, Mr Mickleborough spoke with Mr Achter, owner of ALC, whereby both parties verbally agreed by phone that ALC would supply 86 metric tonnes of flax to SWT at a price of $17 per bushel, in November 2021. After the phone call, Mr Mickleborough applied his ink signature to the contract, took a photo of it on his mobile phone and texted it to Mr Archter with the text message, "please confirm flax contract". Mr Archter responded by texting back a "thumbs-up" emoji, but ultimately did not deliver the 87 metric tonnes of flax as agreed.   Issues The parties did not dispute the facts, but rather, "disagreed as to whether there was a formal meeting of the minds" and intention to enter into a legally binding agreement. The primary issue that the Court was tasked with deciding was whether Mr Achter's use of the thumbs-up emoji carried the same weight as a signature to signify acceptance of the terms of the alleged contract. Mr Mickleborough put forward the argument that the emoji sent by Mr Achter conveyed acceptance of the terms of the agreement, however Mr Achter disagreed arguing that his use of the emoji was his way of confirming receipt of the text message. By way of affidavit, Mr Achter stated "I deny that he accepted the thumbs-up emoji as a digital signature of the incomplete contract"; and "I did not have time to review the Flax agreement and merely wanted to indicate that I did receive his text message." Consensus Ad Idem In deciding this issue, the Court needed to determine whether there had been a "formal meeting of the minds". At paragraph [18], Justice Keene considered the reasonable bystander test: " The court is to look at “how each party’s conduct would appear to a reasonable person in the position of the other party” (Aga at para 35). The test for agreement to a contract for legal purposes is whether the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract (Aga at para 36). The question is not what the parties subjectively had in mind, but rather whether their conduct was such that a reasonable person would conclude that they had intended to be bound (Aga at para 37)."   Justice Keene considered several factors including: The nature of the business relationship, notably that Mr Achter had a long-standing business relationship with SWT going back to at least 2015 when Mr Mickleborough started with SWT; and   The consistency in the manner by which the parties conducted their business by way of verbal conversation either in person or over the phone to come to an agreement on price and volume of grain, which would be followed by Mr Mickleborough drafting a contract and sending it to Mr Achter. Mr Mickleborough stated, "I have done approximately fifteen to twenty contracts with Achter"; and   The fact that the parties had both clearly understood responses by Mr Achter such as "looks good", "ok" or "yup" to mean confirmation of the contract and "not a mere acknowledgment of the receipt of the contract" by Mr Achter.   Judgment At paragraph [36], Keene J said: "I am satisfied on the balance of probabilities that Chris okayed or approved the contract just like he had done before except this time he used a thumbs-up emoji. In my opinion, when considering all of the circumstances that meant approval of the flax contract and not simply that he had received the contract and was going to think about it. In my view a reasonable bystander knowing all of the background would come to the objective understanding that the parties had reached consensus ad item – a meeting of the minds – just like they had done on numerous other occasions." The court satisfied that the use of the thumbs-up emoji paralleled the prior abbreviated texts that the parties had used to confirm agreement ("looks good", "yup" and "ok"). This approach had become the established way the parties conducted their business relationship.   Significance of the Thumbs-Up Emoji Justice Keene acknowledged the significance of a thumbs-up emoji as something analogous to a signature at paragraph [63]: "This court readily acknowledges that a thumbs-up emoji is a non-traditional means to "sign" a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a "signature" – to identify the signator… and… to convey Achter's acceptance of the flax contract." In support of this, Justice Keene cited the dictionary.com definition of the thumbs-up emoji: "used to express assent, approval or encouragement in digital communications, especially in western cultures", confirming that the thumbs-up emoji is an "action in an electronic form" that can be used to allow express acceptance as contemplated under the Canadian Electronic Information and Documents Act 2000. Justice Keene dismissed the concerns raised by the defence that accepting the thumbs up emoji as a sign of agreement would "open the flood gates" to new interpretations of other emojis, such as the 'fist bump' and 'handshake'. Significantly, the Court held, "I agree this case is novel (at least in Skatchewan), but nevertheless this Court cannot (nor should it) attempt to stem the tide of technology and common usage." Ultimately the Court found in favour of SWT, holding that there was a valid contract between the parties and that the defendant breached by failing to deliver the flax. Keene J made a judgment against ALC for damages in the amount of $82,200.21 payable to SWT plus interest.   What does this mean for Australia? This is a Canadian decision meaning that it is not precedent in Australia. However, an Australian court is well within its rights to consider this judgment when dealing with matters that come before it with similar circumstances. This judgment is a reminder that the common law of contract has and will continue to evolve to meet the everchanging realities and challenges of our day-to-day lives. As time has progressed, we have seen the courts transition from sole acceptance of the traditional "wet ink" signature, to electronic signatures. Electronic signatures are legally recognised in Australia and are provided for by the Electronic Transactions Act 1999 and the Electronic Transactions Regulations 2020. Companies are also now able to execute certain documents via electronic means under s 127 of the Corporations Act. We have also seen the rise of electronic platforms such as "DocuSign" used in commercial relationships to facilitate the efficient signing of contracts. Furthermore, this case highlights how courts will interpret the element of "intention" when determining whether a valid contract has been formed, confirming the long-standing principle that it is to be assessed objectively from the perspective of a reasonable and objective bystander who is aware of all the relevant facts. Overall, this is an interesting development for parties engaging in commerce via electronic means and an important reminder to all to be conscious of the fact that contracts have the potential to be agreed to by use of an emoji in today's digital age.

Published by Foez Dewan
29 August, 2023

Venues NSW ats Kerri Kane: Venues NSW successful in overturning a District Court decision

The McCabes Government team are pleased to have assisted Venues NSW in successfully overturning a District Court decision holding it liable in negligence for injuries sustained by a patron who slipped and fell down a set of steps at a sports stadium; Venues NSW v Kane [2023] NSWCA 192 Principles The NSW Court of Appeal has reaffirmed the principles regarding the interpretation of the matters to be considered under sections5B of the Civil Liability Act 2002 (NSW). There is no obligation in negligence for an occupier to ensure that handrails are applied to all sets of steps in its premises. An occupier will not automatically be liable in negligence if its premises are not compliant with the Building Code of Australia (BCA). Background The plaintiff commenced proceedings in the District Court of NSW against Venues NSW (VNSW) alleging she suffered injuries when she fell down a set of steps at McDonald Jones Stadium in Newcastle on 6 July 2019. The plaintiff attended the Stadium with her husband and friend to watch an NRL rugby league match. It was raining heavily on the day. The plaintiff alleged she slipped and fell while descending a stepped aisle which comprised of concrete steps between rows of seating. The plaintiff sued VNSW in negligence alleging the stepped aisle constituted a "stairwell" under the BCA and therefore ought to have had a handrail. The plaintiff also alleged that the chamfered edge of the steps exceeded the allowed tolerance of 5mm. The Decision at Trial In finding in favour of the plaintiff, Norton DCJ found that: the steps constituted a "stairwell" and therefore were in breach of the BCA due to the absence of a handrail and the presence of a chamfered edge exceeding 5mm in length. even if handrails were not required, the use of them would have been good and reasonable practice given the stadium was open during periods of darkness, inclement weather, and used by a persons of varying levels of physical agility. VNSW ought to have arranged a risk assessment of the entire stadium, particularly the areas which provided access along stepped surfaces. installation of a handrail (or building stairs with the required chamfered edge) would not impose a serious burden on VNSW, even if required on other similar steps. Issues on Appeal VNSW appealed the decision of Norton DCJ. The primary challenge was to the trial judge's finding that VNSW was in breach of its duty of care in failing to install a handrail. In addition, VNSW challenged the findings that the steps met the definition of a 'stairwell' under the BCA as well as the trial judge's assessment of damages. Decision on Appeal The Court of Appeal found that primary judge's finding of breach of duty on the part of VNSW could not stand for multiple reasons, including that it proceeded on an erroneous construction of s5B of the Civil Liability Act 2002 and the obvious nature of the danger presented by the steps. As to the determination of breach of duty, the Court stressed that the trial judge was wrong to proceed on the basis that the Court simply has regard to each of the seven matters raised in ss 5B and 5C of the CLA and then express a conclusion as to breach. Instead, the Court emphasised that s 5B(1)(c) is a gateway, such that a plaintiff who fails to satisfy that provision cannot succeed, with the matters raised in s 5B(2) being mandatory considerations to be borne in mind when determining s 5B(1)(c). Ultimately, regarding the primary question of breach of duty, the Court found that: The stadium contained hazards which were utterly familiar and obvious to any spectator, namely, steps which needed to be navigated to get to and to leave from the tiered seating. While the trial judge considered the mandatory requirements required by s5B(2) of the CLA, those matters are not exhaustive and the trial judge failed to pay proper to attention to the fact that: the stadium had been certified as BCA compliant eight years before the incident; there was no evidence of previous falls resulting in injury despite the stairs being used by millions of spectators over the previous eight years; and the horizontal surfaces of the steps were highly slip resistant when wet. In light of the above, the Court of Appeal did not accept a reasonable person in the position of VNSW would not have installed a handrail along the stepped aisle. The burden of taking the complained of precautions includes to address similar risks of harm throughout the stadium, i.e. installing handrails on the other stepped aisles. This was a mandatory consideration under s5C(a) which was not properly taken into account. As to the question of BCA compliance, the Court of Appeal did not consider it necessary to make a firm conclusion of this issue given it did not find a breach of duty.  The Court did however indicated it did not consider the stepped aisle would constitute a "stairway" under the BCA. The Court of Appeal also found that there was nothing in the trial judge's reasons explicitly connecting the risk assessment she considered VNSW ought to have carried out, with the installation of handrails on any of the aisles in the stadium and therefore could not lead to any findings regarding breach or causation. As to quantum, the Court of Appeal accepted that the trial judge erred in awarding the plaintiff a "buffer" of $10,000 for past economic loss in circumstances where there was no evidence of any loss of income. The Court of Appeal set aside the orders of the District Court and entered judgment for VNSW with costs. Why this case is important? The case confirms there is no obligation in negligence for owners and operators of public or private venues in NSW to have a handrail on every set of steps. It is also a welcome affirmation of the principles surrounding the assessment of breach of duty under s 5B and s 5C of the CLA, particularly in assessing whether precautions are required to be taken in response to hazards which are familiar and obvious to a reasonable person.

Published by Leighton Hawkes
18 August, 2023
Litigation and Dispute Resolution

Expert evidence – The letter of instruction and involvement of lawyers

The recent decision in New Aim Pty Ltd v Leung [2023] FCAFC 67 (New Aim) has provided some useful guidance in relation to briefing experts in litigation.

Published by Justin Pennay
10 August, 2023