Employee loses unfair dismissal bid after being terminated over Facebook posts

Employees have a duty to ensure that their out of hours conduct (including social media posts) is not contrary to the obligations they owe to their employer. Further employees should also ensure that out of hours conduct is not in breach of workplace policies or damaging to the reputation of their employer.

In a recent decision, the Fair Work Commission (FWC) dismissed an employee’s application for unfair dismissal despite finding that the employee was denied procedural fairness. The employee was summarily dismissed after making a series of posts to his Facebook page that were considered offensive, derogatory and inconsistent with his employer’s values and policies.

The employee commenced employment with The Australian Council of Trade Unions (ACTU) in June 2015.

On September 21, 2021, the employee’s manager was made aware of a post made by the employee on Slack — the ACTU’s private internal messaging platform. The post, which was visible to all employees, was made in response to the violent protest that took place following the Victorian government’s announcement of a mandatory COVID-19 vaccination requirement.

In the post, the employee wrote “my sources on the ground tell me that there must be a few thousand CFMEU members chanting F Dan Andrews and F The Jab heading towards Spring St They’re obviously not ‘far right’ or Neo-Nootsis (whatever that means), prepare for some calls though!”

The Slack post raised concerns with the ACTU which prompted it to review the employee’s other social media posts which could be viewed on his personal (public) Facebook profile.

This review revealed that in the days leading up to and on the day of the protest, the employee had posted several posts outside of work hours which were of concern to the ACTU, including:

• A picture of the protest with the caption “F#$k the Jab’ good lads!”;
• “I was fleeing domestic violence so I could attend the Blag Lives Natter meeting and it was all gay people and rainbow flags there and we discussed getting drag queen story hour into primary schools ahhhhh your honour… shiiiiiieeeeeeeeet NIBBA (Don’t be afraid to use globo homo Big Lies against them..) [sic]”; and
• A link to a video clip of a police officer being assaulted during a protest with a caption that stated, “a hero has emerged! Bad music but beautiful clip, I do enjoy Bolsheviks whether urban cops or other types get taken out, even if only for a moment…”.

Relevantly, the ACTU Code of Conduct required all staff to:

• Conduct themselves in public in a manner that will not reflect adversely on the ACTU; and
• Not participate in harassing, discriminatory or bullying behaviour.

The ACTU has a public position on various matters and campaigns, including domestic violence measures, LGTBQIA+ and anti-racism campaigns. The ACTU would hold weekly meetings where its public position was communicated to employees.

The ACTU also had a social media policy which stated that employees should not contribute to any content that may bring the ACTU into disrepute. Additionally, if employees identified themselves as being employed by the ACTU on their social media accounts, they were to make it clear that the views expressed were personal and not those of the ACTU.

The employee was invited to a meeting to respond to the allegation that he engaged in unacceptable conduct that may amount to serious misconduct.

At the commencement of the meeting, the employee requested that the meeting be recorded and that the allegations of his conduct be put in writing. Both requests were denied. The recording request was denied because the ACTU’s practice was not to record meetings, while the request for the allegations to be put in writing was denied because the ACTU claimed it would be inefficient.

At the meeting, the employee was shown each post and provided with the opportunity to respond as to how the various posts were compatible with his employment. The employee sought to justify the posts based on his personal political and religious opinions.

After considering his responses, the ACTU summarily dismissed the employee the same day for serious misconduct, finding his explanation inadequate and the posts “completely inconsistent” with its “clear and unambiguous values and policies”.

The employee subsequently lodged an unfair dismissal application.

The employee agreed that at the time of making the posts he knew the ACTU’s public policy was to support mandatory vaccination.

The employee claimed that his posts should not be considered deliberate behaviour inconsistent with the continuation of his employment because there were no express terms in his contract relating to this conduct. The employee argued that the social media policy was not relevant as it did not specifically apply to out of hours conduct, nor did his Facebook identify that he was employed by the ACTU.

The ACTU maintained that the employee’s summary dismissal was justified given the posts were completely inconsistent with their public policy and constituted a risk to the reputation of the ACTU. Furthermore, the employee was already on his final warning for failing to remove explicit photos from his work desk.

Valid reason for dimissal

The issues for determination were whether the views the employee expressed on social media were in breach of his employment obligations, whether the conduct was serious misconduct and in turn, if there was a valid reason for dismissal.

Further, as the employee’s Facebook posts occurred while the employee was not at work, it was also necessary to determine if his conduct affected the employment relationship and was contrary to his employment contract.

The FWC noted that the employee had obligations under the code, harassment, discrimination and workplace bullying policy and the social media policy which the employee was obliged to comply with under his employment contract.

After reviewing each post made by the employee, the FWC found that a number of the Facebook posts were in breach of the code and/or the harassment, discrimination and workplace bullying policy and were also contrary to the ACTU’s public position.

The FWC was not satisfied that the social media policy applied to the employee’s out of hours conduct. He noted that the focus on the policy was on the use of ACTU internet, email and social media, not on employees’ use of their own equipment and did not extend to social media conduct outside of an employee’s ordinary hours of work.

The employee’s arguments that his conduct was not misconduct or serious misconduct were rejected. As to the employee’s argument that his posts were his personal views, the FWC stated:

“A right to hold and express a strongly held views [sic] does not however mean the applicant has an unqualified right to publicly espouse views that are contrary to the interests and values of his employer.”

Similarly, the employee’s submission that his Facebook account did not identify his location and did not contain posts critical of the ACTU or its affiliates were not accepted. The FWC stated:

“Once the Facebook posts were made, they were public and liable to be viewed by other persons beyond his immediate Facebook group. That his Facebook profile was on a ‘public’ versus a ‘private’ setting indicates he was content for the posts to be shared. The vice and virtue of social media is that posts made by ‘obscure’ individuals can be circulated widely and quickly, far beyond the initial Facebook group to which they were initially made available to. The reality is that the applicant had no control over the post’s circulation, short of removing the post.”

Applying the principles in Rose v Telstra, the commission was satisfied that the employee’s out of hours conduct was likely to cause damage to the employment relationship and was incompatible with the employee’s duty owed to the ACTU.

It was found that the employee’s out of hours conduct breached the ACTU’s workplace policies and amounted to serious misconduct and also met the definition of serious misconduct under the Fair Work Regulations 2009. Accordingly, it was found that there was a valid reason for the employee’s dismissal.

Turning to whether there was procedural fairness afforded to the employee, the FWC found that although the employee was made aware that the posts were not compatible with the values of ACTU, the ACTU did not expressly tell the employee:

• The specific values which were inconsistent with his posts;
• How the posts were inconsistent with its values; and
• The particular policies or contract terms his conduct breached.

The employee should have been made aware of each of the above and been given a full opportunity to respond.

The denial of the employee’s request for the allegations to be put in writing due to a time delay was also found to be unacceptable, with the FWC taking the view that it should not have been an issue for the process to be temporarily delayed so that the allegations could be put in writing.

Having regard to the above, and in particular, the lack of specific allegations put to the employee, the commission held the ACTU denied him procedural fairness by failing to give him a proper opportunity to respond.

However, less significance was placed on the lack of procedural fairness than the presence of a valid reason. The FWC found that even if the ACTU put the detail of the allegations to the employee it was highly unlikely that there would have been a different outcome.

Accordingly, it was found that the valid reason for dismissal outweighed the lack of procedural fairness and the employee’s dismissal was not harsh, unjust or unreasonable.

Lessons for employers

It is clear that social media policies are a necessary for employers to protect their reputation and security and also to set the conduct and behaviour expectations of employees both during and outside working hours. It is a timely reminder for employers to review their social media policy.

‍This article was first published on the Workplace Law blog. Information provided on the blog is not legal advice and should not be relied upon as such.