LED Technologies Case Review – Dismissal Over Facebook Post Deemed Unfair

In the recent decision of Colby Somogyi v LED Technologies Pty Ltd [2017] FWC 1966, Commissioner Gregory held that there was no valid reason for the employee’s dismissal over an “offensive and vulgar” Facebook post. Further, due to a lack of process, the dismissal was considered harsh and unreasonable.  As a result, the employee was awarded, $6,238.00 gross in compensation.

In this article, we will review the circumstances surrounding the case and relevant considerations which led to the Commissioner’s decision. We will also provide information on how to deal with social media in the workplace and avoid an unfair dismissal claim when dismissing an employee.

Background facts

Summary of relevant facts:

• The employer dismissed the employee by phone after discovering a Facebook post made by the employee which stated:

“I don’t have time for people’s arrogance. And your 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 you are?” (Facebook Post)

• The employee alleged that during the phone call he was not provided with an explanation about why he was being dismissed.
• The employer denied this but acknowledged that he did not provide the employee with an opportunity to explain the Facebook Post because he believed the employee was lying.
• The employer pointed out that the employee replaced the Facebook Post with the following post shortly afterwards and this was an acknowledgement by the employee that he had done the wrong thing by posting the Facebook Post:

“Let’s Reword my last status so there is no miss-understanding… My Poor mum; Her arrogant boss is bullying her and miss treating her everyday at work he is trying to push her out of the company, because there is a new girl and she is sucking/f*****g the boss. this new girl has got into my mums position by being a w***e. She comes home most nights upset and a few night she is crying her eyes out. She needs to speak to someone or fair work i think but she won’t listen to me. I am sick of pathetic people’s arrogance and all the b******t that people do to others for no reason.”

• The employee lodged an unfair dismissal claim against the employer, claiming that the Facebook Post concerned his mother’s employment which was being threatened by another employee and was not directed at his employer, LED Technologies.
• In the response to the employee’s unfair dismissal claim, the employer stated that the employee was terminated for using social media during work hours against company policy and due to his performance and previous warnings, the decision was made to terminate his employment.
• The employer had a policy manual which stated “Usage of social media at work found to be improper or time wasting will result in disciplinary action”.
• The employee denied any knowledge of receiving warnings but noted that he had received 2 pay increases after the warnings were allegedly given. He also submitted that he had not breached any policies that he had been made aware of.
• The employer later responded that the employee was dismissed on the grounds of serious misconduct with immediate effect due to the Facebook Post which was seen and reported by several employees.
• The employee stated that the Facebook Post was made during his break and that he had posted a further comment approximately 5 minutes later which clarified the Facebook Post was for his mother.

Relevant considerations

While the Commissioner conceded that the Facebook Post was “undoubtedly crude and immature” and “used references that are offensive and vulgar” he ultimately held that the dismissal was hash and unreasonable in all the circumstances. Specifically:

1. No valid reason: based on the limited submissions and evidence, the Commissioner could not conclude that there was a valid reason to dismiss the employee.
   • The Facebook Post was made while the employee was at work however, it is possible that it was made during a break.
   • There was also no evidence to confirm that the employee was provided with or made aware of the social media policy.
   • There was also no evidence to confirm that the Facebook Post was directed at the employer or any of its employees. Instead, it was more plausible that the Facebook Post was made in support of his mother as claimed.
   • Similar language appeared to have been used in the workplace at various times.
2. No opportunity to respond: the employee was not given a real opportunity to explain or respond which is a reasonable expectation before a decision to terminate is made.

How to deal with social media in the workplace

The immediate reaction of many employers is to ban all access to social networking in the workplace. However, this is not always appropriate. Particularly when employers require their employees to use mobile phones, email and in some cases, Facebook in the course of their employment.

It is also necessary in some instances (e.g. if a family member has an illness) for employees to be reachable. This does not mean that employees necessarily have a right to access such media during working hours. All workplaces should decide how technology can be accessed, taking into account the needs of the business and of the employees.

Severe problems can arise when social media is not managed and can be exceptionally costly. There are risks when any material is perceived by another employee or person as being offensive or obscene particularly if it is pornographic, sexually suggestive, harassing, hateful, racist, sexist, abusive or discriminatory.  It is important to note that employers may be held vicariously liable for an employee’s actions while at work.

At a minimum, a social media and IT policy should address:

1. What sites/content are appropriate at the workplace?
2. When are appropriate times to access social media sites?
3. What should the process be for addressing inappropriate or excess internet usage?
4. How is internet usage monitored and by who?
5. How are mobiles to be used in the workplace?

By regularly discussing the use of technology and social media in the workplace and by developing appropriate policies, everyone understands what is expected of them and the consequences of inappropriate use.

Employers must ensure their policies clearly outline the consequences (i.e. disciplinary action) of such conduct – even if it is in their own personal time. Further, employers must also ensure that all employees have been made aware of and have access to the policy.

Dismissing an employee

If you are considering dismissing an employee, we strongly encourage you to contact the Employer Assist team for free advice before you take any action.

In order to avoid an unfair dismissal claim, you should at the very least:

1. Ensure you follow a procedurally fair process.
2. Put the allegation(s) to the employee and provide them with the opportunity to respond.
   • Put the allegation(s) to the employee in writing together with any evidence and relevant background information i.e. previous warnings, policies, directions etc.
   • Give the employee time to consider the allegation(s) before discussing them.
   • Arrange a meeting for the employee to provide their response to the allegation(s).
   • Allow the employee to have a support person if requested.
3. Consider the employees response and ensure that you have a valid and lawful reason for dismissal before making the decision.
4. Meet with the employee to inform them of the reasons for their dismissal and provide a termination letter.

Need assistance?

For more information on dismissals or social media in the workplace, contact Employer Assist on 1300 735 306 or aaaa@employerassist.com.au. We can assist you to implement a suitable social media and IT policy for your workplace and with dismissals or any unfair dismissal claims.

19 May 2017