Employment Law Series: Social Media Case Update

The issue of social media in the employment context is at the forefront of employment law issues presently. It is a grey area. Today, we will look at some recent cases. But first, why does this issue matter? Because it is about employees personal lives getting caught up in their work life – there is a risk that employers get it wrong and it is, therefore, important that employers take preventative steps.

Please note this article includes explicit language.

Linfox Australia Pty Ltd v Glen Stutsel [2012] FWAFB 7097

Facts

  • Mr Stutsel was employed by Linfox as a truck driver from April 1989 until 2011.
  • Mr Stutsel made comments about two of his managers on Facebook but claimed not to have known the comments could be considered ‘public’ (wife and daughter set up his account).
  • Comments:

Mr Stutsel: ‘Turn your phone off. So you reckon you slept like a bear? Are you aware of just how a bear sleeps? When a bear hibernates, apart from sleeping in a dark cold cave for several months, not having anything to eat or drink for that time, it also packs its asshole with dirt and sticks before going into a deep sleep.’

George Papa: ‘Since when have you become a bear expert haha.’

Mr Stutsel: ‘You can call it a bit of professional courtesy, I admire any creature that has the capacity to rip Nina and Assaf heads off, shit down their throats and then chew up and spit out their lifeless body!’

Decision

  • It was held that there was no valid reason for dismissal – primarily due to no social media policy.
  • The Full Bench also found it relevant that the conduct took place outside of the workplace and outside of work hours.
  • Relevantly, the Full bench noted that 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 viewed differently in the future”.
  • Mr Stutsel was ordered to be reinstated.

Implications

  • Warning to all employees – Facebook is a public platform, conversations are not considered akin to those ‘at the pub’.
  • Underlines the importance of maintaining a social media policy – and ensuring employees are regularly made aware of it.

Margelis v Alfred Health [2012] FWA 5390

Facts

  • Mr Margelis was an IT administrator who was sacked for behaviour that included participating in a highly offensive online conversation with another IT administrator.
  • Mr Margelis argued that he did not initiate the conversation and should not be culpable for the offensive comments of another employee.
  • Comments:

Mr Margelis: ‘I wish I had mind control….because that way I would get Gardiner to do stupid stuff like….hitting his head hard until it bleeds on the brick walls! then grabbing Yann’s foot and swinging him around and then trying to rape X!’

Decision

  • Application dismissed.
  • The conduct occurred during work hours using employer equipment.
  • Online conversation – inherently not a private conversation.
  • “It will hopefully be sufficient to note that the conversation, held during work time, using Alfred equipment … cannot be said to be a private conversation, not work related or something for which they cannot or should not be brought to account. … the fact is that internet, online conversations to or from a work computer are inherently non-private …”.

Implications

  • File noting prior warnings are important and can mitigate a substantial amount of risk for an employer.
  • Employers to consider separate disciplinary matters for individual employees – even if misconduct of several employees stems from the same conversation.

Little v Credit Corp Group Limited t/as Credit Corp Group [2013] FWC 9642

Facts

  • Mr Little was dismissed for serious misconduct for posting inappropriate comments about an incoming employee on Facebook.
  • Comments made after hours.
  • Mr Little had been warned about his social media usage in the past.
  • Comments:

Mr Little: ‘On behalf of all the staff at The Credit Corp Group I would like to welcome our newest victim of butt rape, Jack Hoye. I’m looking Forward to sexually harassing you behind the stationary [sic] cupboard big boy.’

Decision

  • Application dismissed.
  • A valid reason for dismissal – conduct constituted serious misconduct.
  • FWC noted: “the applicant is perfectly entitled to have his personal opinions, but he is not entitled to disclose them to the ‘world at large’ where to do so would reflect poorly on the Company and/or damage its reputation and viability… the fact the applicant made both Facebook comments in his own time is of no consequence. It was not when the comments were made which is important, but the effect and impact of those comments on the respondent, its other employees and on the new employee.”

Implications

  • The gap between home life and work life shortened.
  • Not all behaviour will be that obviously inappropriate, so proper training is essential.

Judith Wilkinson-Reed v Launtoy Pty Ltd T/A Launceston Toyota

Facts

  • HR Manager – good friends with the wife of the business owner.
  • Private Facebook conversation with the wife of the business owner.
  • Business owner accessed his estranged wife’s account and discovered comments.
  • Comments:

Applicant: ‘Another thing, Sam is dead keen for all of the staff here to complete the Toyota Engagement Survey (obviously because he thinks everyone loves him). Anyway he’s told me I have to push it with all the staff and the ones I’ve spoken to are saying that they can’t wait to be able to tell Toyota anonymously what they think of him. He’s going to get the biggest shock!’

Mrs Nixon: ‘Yayyyy, I am not at all a vindictive person, but gosh I hope everyone tells the truth, he’s so awful, so awful to every single person we knew. I will never tell anyone because that is not fair. Let’s hope and pray he gets his due course’.

Applicant: ‘I am quite sure everyone knows his disdain for them; he might think he does not show it. A lot of people put up with him just because of you!! Damian told me months ago he’s called ‘tosser’ by most in the motor vehicle world in Lonnie.’

Decision

  • It was held that the comment about the owner taking a dislike to another employee was not serious enough to justify dismissal.
  • The remark was not made to another employee or a customer of the business and, would have remained private to the parties to the conversation had the owner not.
  • Application upheld.
  • Awarded 26 weeks’ compensation – Statutory limit.

Implications

  • Social Media Policies should not extend to Facebook messenger – too restrictive.
  • “written in their own time and using their own equipment” – FWC taking a pragmatic approach to social media usage and the ‘connection’ to employment.
  • Further guidance in relation to the boundaries between work life and home life.

Singh v Aerocare Flight Support Pty Ltd [2016] FWC 6186

Facts

  • Mr Singh was a baggage handler who had access to high-security areas.
  • Mr Singh made five Facebook Comments, one of which being:

Mr Singh: “We all support ISIS”.

Decision

  • The Facebook posts were seen by two of Mr Singh’s colleagues and brought to the attention of Aerocare management.
  • Following several meetings with Mr Singh, in which he argued that the Facebook posts were “sarcastic”, the decision was made to dismiss Mr Singh for breach of the Social Media Policy.
  • Application upheld – unfairly dismissed.
  • The FWC found that Aerocare:
    • failed to properly investigate the Facebook Posts. In particular, Aerocare failed to consider the entire Facebook newsfeed, which would have led to the conclusion that Mr Singh did not truly support ISIS;
    • spent only 10 minutes deliberating over Mr Singh’s responses to the allegations – “closed their minds”;
    • did not consider any alternatives to dismissal; and
    • failed to take consider Mr Singh’s apology for posts.
  • Mr Singh was awarded $4,800 in compensation (8 weeks’ pay).

Implications

  • Context matters.
  • FWC emphasised that this decision “should not suggest that it is acceptable for employees in the relevant airport environment to post what appears to be support for a terrorist organisation and explain it away as sarcasm, comedy or satire”.
  • The absence of a procedurally fair and thorough investigation process will likely lead to a successful unfair dismissal claim.

Ms Nektaria Natoli v Anglican Community Services t/a Anglicare [2018] FWC 2180

Facts

  • Ms Natoli believed a fellow junior employee had keyed her partner’s car.
  • Ms Natoli sent threatening text messages the employee followed by an aggressive Facebook post.
  • Ms Natoli argued that comments were made in the ‘heat of the moment’ and didn’t warrant dismissal.
  • Comment:

Ms Natoli: “A nasty piece of work in my workplace decided she would teach me a lesson by scratching John’s 60 thousand dollar vehicle, which I was borrowing yesterday. The little fucker didn’t like being told to complete her duties before month end so this is the result. John’s rightfully furious and so am I. Watch out. This is over 6 grand damage!”

Decision

  • Application dismissed.
  • FWC baffled by “lack of training” argument – do not need the training to know what’s right and wrong.
  • The content and motivation of the text messages and Facebook post were intended to scare, intimidate and threaten a staff member.
  • Not a ‘spur of the moment’ single incident.
  • Breach of social media policy – valid reason for dismissal.

Implications

  • Social media policy must extend to cover not only social media but other forms of communication (e.g. text messaging).
  • Threatening or intimidating staff of social media is taken very seriously.
  • Narrows the gap between work and private life.

Take home message for employers

  • Having a Social Media Policy that all employees are aware of is non-negotiable.
  • Conduct on social media must have a sufficient ‘connection’ to work.
  • Procedural fairness matters.
  • Context matters.
  • Knee-jerk reactions are not considered favourably.
  • Facebook and colleagues do not mix.
  • File note, file note, file note.

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