A recent case ruling in favour of an employee who was unfairly dismissed from his employment, has highlighted some issues regarding social media conduct by employees and the management of such conduct by employers.
In Stutsel v Linfox Australia Pty Ltd Mr Stutsel had been employed as a truck driver for the company for 22 years and was dismissed from his job for making racially derogatory remarks, sexual discrimination and derogatory comments about two of his managers. He successfully prosecuted a claim for unfair dismissal.
The comments leading to the termination of Mr Stutsel’s employment were made on his Facebook page. The conduct considered by the employer to be racially derogatory included comments made by Mr Stutsel referring to one of his Muslim managers as a “bacon hater”. Comments implying that a female manager had performed sexual favours for other staff members were considered sexually harassing. Further comments between Mr Stutsel and another employee of the company were deemed inappropriate and involved wishes of violence occurring against the managers. Many of the comments were made in threads between Mr Stutsel and various other employees of the company.
The conduct was brought to the attention of the employers by the two managers who believed they were the subjects of the comments. The female manager who was the subject of the comments deemed sexually harassing was not a “friend” of Mr Stutsel’s on Facebook but was led to his page after seeing his comment on the page of someone with whom she was a mutual friend. Although she was not his “friend” she was able to view these comments on his page because it was open to the public.
After an investigation by the company into the Facebook comments , Mr Stutsel’s employment was terminated. Prior to that incident Mr Stutsel’s record throughout his 22 years of employment had remained unblemished.
Mr Stutsel claimed that his account had been set up by his wife and daughter and that he had believed it to have maximum security settings and that only those who he had “accepted” as Facebook friends would be able to view the content on his page. He also highlighted that many of the comments had not been made by him but by others on his page and when asked why he did not take action to remove the comments he claimed he had no knowledge that it was possible to do so.
Fair Work Australia held that while the conduct by Mr Stutsel was undoubtedly inappropriate and the dismissal was procedurally fair, there was no valid reason for his dismissal. It was accepted that Mr Stutsel believed his page to be private and it was stated that his Facebook page did not qualify as a public forum. The reference to “bacon hater” was accepted as clearly referring to his muslim manager and while clearly in bad taste it did not “amount to being a racially derogatory remark intended, or acting to, vilify the manager on racial grounds” as it could just have easily referred to other religious groups. Furthermore it was noted that the context of the comments made on the page were comparable to a conversation between co-workers in a pub blowing off steam, they merely occurred on Facebook instead.
The comments referring to the female manager were of a different nature, however the main offending comments were not made by Mr Stutsel himself and it was accepted that he was not aware that he could delete the comments from his page. It was further noted that it was “strange” that Linfox chose to take action against Mr Stutsel in regards to these comments, rather than the actual author. The comments alleged to be threatening were instead deemed metaphorical.
The employer was ordered to reinstate Mr Stutsel and compensate him for lost wages from the time of termination until reinstatement, deducting any amounts he had made in other employment since the termination.
At the time of Mr Stutsel’s dismissal and the time of the hearing, Linfox did not have a policy relating to the use of social media by its employees. This was highlighted by the commissioner who pointed out that while the company relied on its induction training and handbook to regulate such behaviours, in the “current electronic age, this is not sufficient”. This case demonstrates the risks associated with the use of social media by employees and the lack of regulation of this behaviour by employees, as well as the danger of terminating employment based on such conduct.
To minimise such risks, companies should ensure that they have clear policies in relation to the use of social media by employees, including consequences of employees using social media such as Facebook to express their opinions about the workplace or other employees.
It is also crucial that employers make their employees aware of such policies, as the current case demonstrates, while there can be reasonable grounds for dismissal based on Facebook conduct, it is difficult to prove there is a valid reason for dismissal without a clear social media policy.
Aitken Whyte Lawyers
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