Facebook breach of social media policy warrants termination

Facebook breach of social media policy warrants termination

The Fair Work Commission has upheld the summary dismissal of an employee who posted offensive material about a colleague on his personal Facebook page. In making the decision, the Commission rejected his primary defence that his behaviour was merely typical of the existing workplace culture tolerated, and in some situations, encouraged by the employer.

The employee had worked for the finance company as a Finance Broker from 2013 until his dismissal.

There was little factual contest in the dispute. The employee had posted two memes to his personal Facebook page on 17 June 2020, one of which contained a sexual connotation referencing a female colleague. When requested by his employer to remove the posts, he did not immediately comply.

A number of colleagues viewed the material and were offended by its contents.

After meeting with the employee to investigate the matter, he was summarily dismissed for engaging in serious misconduct on 19 June 2020. Part of the reasoning for the dismissal involved his lack of attrition and a concern that he would engage in similar behaviour, potentially damaging the reputation of the business.

The employee had received several prior written warnings for other inappropriate behaviours.

The employee claimed his behaviour in posting the memes was consistent with the existing workplace culture. He cited various behaviours by other staff (including himself) that he claimed were condoned by his employer, including the giving of racist Secret Santa gifts, constant sexual harassment of colleagues, racist and sexist emails traded between staff, and regular exchange of foul language between male and female staff.

The employee acknowledged that he was aware of the company’s social media policy, and in fact, had received direct training on the policy.

While acknowledging the existence of a `robust’ culture in the workplace, Deputy President Nicholas Lake determined that the employee’s behaviour was wholly inappropriate and sufficiently serious to justify termination.

As he commented,

“His conduct was plainly inappropriate, if not also unlawful…The underlying issue with the Applicant’s conduct is the sexually explicit and public nature of posting the first meme to social media and the reasonably foreseeable consequences that action might have”.

 The application was dismissed.

Mr T v 360 Finance Pty Ltd (U2020/9477) 6 May 2021

For queries about social media or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, or 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

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.

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