ACTU dismisses employee for posting offensive material online
The Fair Work Commission has upheld the dismissal of an employee for posting offensive material on social media, in direct opposition to the principles espoused by his employer, the Australian Council of Trade Unions (ACTU). The case again highlights the risks that employees may face when giving their personal views on social media and other digital platforms.
The employee had commenced employment with the peak union body on 15 June 2015 as an Inbound Organiser. His duties included responding to members’ queries via phone, explaining the benefits of union membership to workers, and acknowledging the receipt of donations to the organisation.
Prior to the issues that led to his dismissal, the employee had several disciplinary matters during his employment with the ACTU. He first received a warning letter in March 2018 after being found to have made disrespectful comments to colleagues.
He received a further written warning dated 9 August 2021 for failing to remove inappropriate posters/images from his workstation. The materials included – a poster of Conan the Barbarian, which included depictions of semi-naked women; black and white photographs of a naked/topless woman; and a photo of a statue of a topless woman.
The evidence presented before Deputy President Ian Masson confirmed that the employee had attended mandatory training in ‘Ethical Bystander Intervention’ and ‘Responding with Compassion – general awareness’. The ACTU developed the programs as part of its commitment to supporting women and various diverse groups at work.
On or about midday, 21 September 2021, the employee’s manager received a screenshot of a post that the employee had placed on the organisation’s internal messaging platform (‘Slack’). The post referred to a protest staged outside the CFMMEU’s Victorian construction division’s office, opposing mandatory COVID-19 requirements for construction workers. The employee made a comment on the post inferring that the protest was not being staged by right-wing extremists, effectively opposing the position held by the ACTU.
Having concerns with the post, the manager then reviewed the employee’s Facebook page and became concerned that a number of posts were variously offensive, potentially constituted harassment and/or a risk to health and safety, or had the potential to damage the reputation of the ACTU. The posts included comments opposing lesbian relationships, objections to mandatory vaccinations (‘F the Jab’), and support for an American teenager charged with fatally shooting two black men during recent civil unrest.
A meeting was arranged with the employee via Zoom on 22 September 2021 to discuss concerns about the employee’s alleged misconduct. He was subsequently terminated for serious misconduct with the termination letter referencing offensive material posted on social media and the two previous warnings issued to him during his employment.
As the Deputy President noted,
“The various Facebook posts of the Applicant cannot be attributed to his ignorance or misinterpretation of the ACTU’s public position on a range of matters. Rather, the posts were made by the Applicant in full knowledge of the ACTU position and to that extent were wilful and deliberate…Having regard to the context in which the Facebook posts occurred, I am satisfied that the conduct of the Applicant constitutes serious misconduct by reason of the Applicant’s breach of explicit policies of the ACTU that he was bound to comply with under his contract of employment”.
The Deputy President rejected the employee’s claims that the posts were merely an expression of his personal views and not related to his employment, noting,
“In applying the principles of Rose v Telstra to the Applicant’s out of hours conduct I accept that there is no evidence that the conduct actually damaged the ACTU’s interest. I am however satisfied that: the conduct is such that, viewed objectively, it is likely to cause serious damage to the relationship between the ACTU and the Applicant; and the conduct is incompatible with the employee’s duty to the ACTU”.
The application was dismissed.
For questions about social media, employee conduct outside work, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 or via email to firstname.lastname@example.org
Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.