29/11/2012

As many Australians enter the world of social media and comments and entries on Facebook, Twitter and the like, it is interesting to see a case involving dismissal of an employee for social media comments about his managers. 

The case was decided by Fair Work Australia ("FWA") in October and involved an employee of Linfox, Glen Stutsel. Mr Stutsel was a truck driver with Linfox for more than 20 years. His employment was terminated for serious misconduct following the posting of comments about two of his managers on his Facebook page. The comments about his managers were offensive, derogatory and discriminatory and included suggestions of dishonest and underhanded conduct and sexual misconduct.

One of the managers viewed the Facebook page and notified the second manager. Both managers complained. After investigations, Mr Stutsel’s employment was terminated.

Mr Stutsel appealed successfully against his dismissal on the grounds that it was harsh, unjust or unreasonable and an appeal against that decision by Linfox was dismissed. So, Mr Stutsel was not only reinstated but was also compensated for lost wages. But before employers get upset, they should consider the reasons by FWA for the decision. These reasons included:

• Mr Stutsel’s satisfactory employment record over 20 years, his age and his employment prospects
• The belief by Mr Stutsel that his Facebook page was on maximum privacy settings and that the comments could only be viewed by himself and his friends
• The belief by Mr Stutsel that his comments were never intended to be communicated to the managers
• The conduct complained of occurred outside the workplace and outside working hours
• Some of the statements complained of had not been made by Mr Stutsel but by others who had gone onto his Facebook and he did not know he could delete those comments once they were posted
• None of the other employees of Linfox who had made offensive comments on Mr Stutsel’s Facebook page faced any sanctions by Linfox, and
• Mr Stutsel was fully aware that the comments on his Facebook page were foolish and he regretted the entire situation.

It is clear that the facts in this case were vitally important in the result. The result could certainly not be taken as condoning derogatory or offensive comments on a Facebook page. FWA stated that "with increased use and understanding of Facebook in the community and the adoption by more employers of social networking policies", some of the factors in this case allowing Mr Stutsel to be reinstated "may be given less weight in future". In other words, don’t necessarily expect the same result if you are experienced with Facebook and put offensive comments about your employer on your Facebook.

You should always remember that entries on a Facebook page may be available for viewing by or referral to large numbers of people over and above the few you think may see it. A useful test in such cases is:

Is it something that you would want your mother to read or, alternatively, would you like it to be about you and to be published on the front page of a daily newspaper? 

We can assist you if you have problems with comments about your management or your company or business in general, whether they are by employees, competitors, customers, suppliers or even the general public, and whether they are online, on Facebook or Twitter or other social media outlets, spoken in public places or meetings or just pinned up on an old-fashioned notice board.

If you have any questions in relation to this article, please contact TOWNSENDS BUSINESS & CORPORATE LAWYERS on (02) 8296 6222.