This recent posting on ‘Workplace Express’ is of particular interest and continues our theme dealing with the rising issue of Social Media in the workplace.

Sacking for derogatory Facebook posts unfair, full bench rules;

A FWA full bench has upheld a finding that Linfox unfairly dismissed a driver who posted derogatory and offensive comments about his managers on Facebook, but has warned employees that Facebook and pub conversations aren’t the same and that some of the factors in the driver’s favour would hold less weight in future.

In a decision that provides some guidance on what the tribunal will consider when determining whether Facebook posts warrant dismissal, Senior Deputy Presidents Justice Alan Boulton and Anne Harrison and Commissioner Barbara Deegan held that Linfox had not shown there was any error significant enough in Commissioner Michael Roberts’ finding last year that the driver’s sacking was unfair to warrant appeal bench “interference”.

“In the somewhat special circumstances of the present matter, and having regard in particular to the nature of the comments made, the limited understanding of the employee as to the privacy of Facebook communications and the employee’s long and satisfactory employment record, the Commissioner decided that the dismissal was harsh, unjust or unreasonable and ordered reinstatement and payment of lost wages,” the full bench said.

“Having regard to the evidence and submissions before him, and having considered all that has been put in the appeal proceedings, we consider that the decision was reasonably open to the Commissioner and is not attended with any error of the kind referred to in House v The King.”

The full bench said that posting derogatory, offensive and discriminatory statements or comments about managers or other employees on Facebook “might” provide a valid reason for termination of employment.

“In each case, the enquiry will be as to the nature of the comments and statements made and the width of their publication. Comments made directly to managers and other employees and given wide circulation in the workplace will be treated more seriously than if such comments are shared privately by a few workmates in a social setting.

“In ordinary discourse there is much discussion about what happens in our work lives and the people involved. In this regard we are mindful of the need not to impose unrealistic standards of behaviour and discourse about such matters or to ignore the realities of workplaces.”

Commissioner Roberts in his decision last year described the driver’s online conversations as having the “flavour” of a pub or cafe conversation, but the full bench said it didn’t agree “altogether” with this characterisation.

“The fact that the conversations were conducted in electronic form and on Facebook gave the comments a different characteristic and a potentially wider circulation than a pub discussion. Even if the comments were only accessible by the 170 Facebook ‘friends’ of the [driver], this was a wide audience and one which included employees of the Company.

“Further the nature of Facebook (and other such electronic communication on the internet) means that the comments might easily be forwarded on to others, widening the audience for their publication.

“Unlike conversations in a pub or cafe, the Facebook conversations leave a permanent written record of statements and comments made by the participants, which can be read at any time into the future until they are taken down by the page owner. Employees should therefore exercise considerable care in using social networking sites in making comments or conducting conversations about their managers and fellow employees.”
Dismissal still harsh because of age, ignorance.

The full bench continued that in the driver’s case, even if his Facebook posts provided a valid reason for his dismissal, it would have been harsh, unjust or unreasonable because of:
• his long period of satisfactory employment at Linfox, his age and job prospects;
• the circumstances of the publication of the offensive comments – particularly his belief that his Facebook page was on maximum privacy settings and that the comments could be viewed by only by himself and his Facebook friends, and were never intended to be communicated to his managers;
• the conduct complained about occurred outside the workplace and outside work hours;
• some of the statements complained about on the Facebook page were not made by the driver and he didn’t know he could delete comments his Facebook friends had posted;
• Linfox didn’t take action against other employees who took part in the conversations; and;
• Com missioner Roberts’ finding that the driver was “fully aware of the comments on his Facebook page were foolish” and that he regretted the “entire situation”.

The full bench said that the driver’s understanding about Facebook [his account was set up by his wife and children and he believed it was on the maximum privacy settings] were an important part of the circumstances taken into account in concluding that the dismissal was unfair.

But, they continued, it was also apparent that with increased use and understanding about Facebook in the community and the adoption by more employers of social networking policies, “some of these factors may be given less weight in future cases”.

“The claim of ignorance on the part of an older worker, who has enthusiastically embraced the new social networking media but without fully understanding the implications of its use, might be more viewed differently in the future.

The Linfox driver was working out of Coles national distribution centre at Eastern Creek in Sydney when he was sacked in May last year for serious misconduct after his Facebook conversations were discovered by one of the two managers (one male and one female) he had commented on when she went to post, as he had done, a birthday message to a third party.

Commissioner Roberts earlier findings also included that:

• The driver’s comments about terrorism and the death of a Muslim terrorist were an expression of his private views in a forum he did not intend to be public.
• Another remark that referred to his manager as a “bacon hater” was in poor taste but not racially derogatory and not intended to be hurtful.
• Some of the Facebook conversations related to the driver’s activities as a TWU delegate, and it was not surprising or unusual in that context that some of the material about Linfox managers was uncomplimentary.
• The comments of a sexual nature posted about the female manager were outrageous but most were not made by the driver, who didn’t realise he could delete them.
• His comment about the female manager which she complained of m ight have been disgusting, but was clearly an attempt at humour and didn’t contain any credible threat to her wellbeing.
• Linfox didn’t have a policy on employees’ use of social media.