By Bayside Group

Apr 6, 2018

Social Media activity still grounds for reasonable dismissal - within reason

There has been significant media attention to social media and employment relationships lately. Some reports have even suggested that, in some cases, undermining your employer or breaching policies through social media may be less likely to lead to termination than in the past. This case demonstrates that employers do indeed have rights to act on inappropriate social media postings and can effectively terminate as long as there is due process.

Employee dismissed after sharing inappropriate video in Facebook Messenger

A recent Fair Work Commission decision once again highlights the perils of sharing social media content amongst colleagues, even if it is considered ‘out of hours’.

The employee in question worked as a stevedore in New South Wales and had been working with the Container Terminal company for approximately 10 months prior to the dismissal taking place.

He was dismissed after his employer had discovered inadvertently that he had shared an explicit video with several other employees via Facebook Messenger. Although this material had been shared during ‘non-work hours’ using a device of his own, the business still deemed the actions to constitute a breach of the Workplace Bullying and Harassment Policy hence providing a valid reason for the termination.

The former employee had argued that as none of the other employees who had received the video formally complained it did not constitute conduct that could in any way bring about vicarious liability to the employer and therefore the need for any policing or action on behalf of the employer was misguided.

It was also put forward that “it is not a matter for an employer to regulate the appropriateness of communications between employees and their friends outside the workplace.”

The employer asserted that actions outside work still constituted a breach of policy

In its defence, the employer contended that the actions of the employee constituted a breach of policy that did not require a complaint to be made as they are obligated to create an environment free from harassment. They argued the employee had been trained and fully understood the organisation’s policies and code of conduct.

Considerable efforts had been made by the employer (in partnership with the MUA) to increase the number of female employees in the industry and create a workplace free from harassment. The employee’s behaviour, although not officially complained about, still caused a female co-worker to reply back via Facebook that she did not like or appreciate having been sent the video.

Notably, one of the persons who received the video was the local MUA Branch Secretary, who ended up calling the worker to convey to him that the video was not appropriate material to be sending to other employees.

The employee ‘showed no contrition’ 

The employer also put forward to the Commission that the employee showed no contrition or indication of embarrassment at his actions before the matter was heard and that the trust and confidence between the parties had evaporated, this was despite being given plenty of opportunity to do so.

It was determined in the decision that the material could “objectively and reasonably have been considered to be offensive.”

During the hearing, the employee confirmed the MUA official had called him and discussed the issue of the Facebook video. During this discussion, the employee mentioned having some personal problems and, shortly after, the Union had applied for a period of leave on his behalf.

When the distribution of the Facebook video was brought to the employers’ attention, the General Manager of HR wrote to each of the female employees who received the video, to the employee who had just commenced leave and to the Union and told them that she believed they the inappropriate material in question may be in breach of company policy.

She also stated she believed that the leave applied for by the MUA on behalf of the employee may in fact have been some form of union-imposed ‘ban’. Ultimately, the Commissioner could not make a substantive finding one way or another if there was any sort of ‘ban’ implemented to avert a disciplinary process. However, the correspondence sent from the General Manager of HR did ultimately kick off the events that lead to the dismissal.

The Union argued that the employee was terminated without being fully informed of the allegations.

The Commissioner determining the matter heard arguments put forward by the Union that the business terminated the employee without fully notifying the employee of the nature of the allegations.  It was determined however that this assertion was incorrect and that under cross-examination the employee confirmed he understood both the seriousness of the conduct and the reason for the disciplinary action being initiated – a complete contradiction to his previous statements.

It was also determined that the business did have a valid reason for the termination due to the ‘relevant nexus or connection’ with the employment relationship and the actions impinged on that relationship. The content of the video distributed was argued to be a joke and ‘soft pornographic’ but it was determined in the decision that the material could “objectively and reasonably have been considered to be offensive.”

The decision

Most importantly the Commissioner gave significant weight to the obviating measures the employee and the MUA had undertaken during the disciplinary process and even commented on how an upfront and more open manner in dealing with the employer may have not only potentially found the dismissal to be ‘harsh, unjust or unreasonable’ but it may have even prevented a dismissal from occurring in the first instance.

The decision by the FWC to dismiss the employee’s unfair dismissal claim is a sage reminder of the perils of social media activity amongst work colleagues, even if it is believed to be during ‘non-work’ time. It is also a reminder that a formal complaint is not always necessary for the employer to initiate disciplinary action against employees.

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