In a recent decision of the Fair Work Commission, an employer was ordered to reinstate an employee who had been dismissed for comments he posted on social media sites outside work hours.
The employer (the Department of Human Services) dismissed the employee from his position as a Centrelink officer for posting on social media sites, a number of negative, inappropriate and offensive posts about the government, the department and its employees and customers over a period of almost three years.
The employee used derogatory and offensive terms to describe customers of the Department, including “whinging junkies”. He also made statements that processing times in the Department were “utterly disgraceful” and he was “embarrassed to work there”.
The Commission confirmed that there will be a valid reason for a dismissal for “out of hours” conduct where the employee’s conduct:
- viewed objectively, is likely to cause serious damage to the relationship between the employer and employee; or
- damages the employer’s interests; or
- is incompatible with the employee’s duty as an employee.
The Commission found that, in regard to some of the posts, the employee had breached his duties as an employee under the Australian Public Service Act to uphold the Australian Public Service values and the employer’s integrity and reputation. On this basis, the employer had a valid reason to dismiss the employee.
However, the Commission found that the employee’s dismissal was harsh and therefore unfair. In reaching this finding, the Commission gave consideration to:
- the employee’s otherwise unblemished record during his 21 years’ service with the employer;
- the employee’s poor prospects of finding suitable alternative employment given he had worked with the employer since he was 19 years of age and had no tertiary qualifications;
- the absence of evidence showing that the employer’s reputation was actually damaged; and
- the absence of evidence establishing that the employee deliberately sought to damage the employer’s reputation.
The Commission ordered that the employer reinstate the employee and maintain his continuity of service. However, the Commission refused to make orders for lost pay, finding that the financial loss suffered by the employee was a suitable sanction for his misconduct.
The decision highlights the importance of employers:
- having in place a social media policy which defines the extent to which the employer is entitled to regulate and take disciplinary action against employees in relation to “out of hours” conduct; and
- ensuring they are able to precisely identify an employee’s social media posts relied upon to justify dismissal and the policy provisions which are said to have been breached.
Karl Rozenbergs is a partner and Karli Thomas is a lawyer at Hall & Wilcox.