FWC deems termination for social media private chat posts to be harsh
The Fair Work Commission has deemed the termination of a firefighter terminated for posting offensive images and comments to colleagues on private social media platforms to be harsh.
The employee ‘MP’ was employed by Ventia Australia Pty Ltd (Ventia) as a Qualified Leading Firefighter (QLFF) based at HMAS Albatross, a naval base at Nowra in southern New South Wales.
MP was employed by Ventia from 31 July 2017 until his dismissal for engaging in misconduct on 20 September 2022.
The misconduct allegations against him arose from various posts he shared on two private Facebook pages – the Sickos Video Sharing Group (Facebook Group 1) and the Punters Events Only (Facebook Group 2), largely between February and August 2022.
It is important to note that the majority of persons within both groups were either current or former employees of Ventia, based at HMAS Albatross.
Some of the posts included a photo of three naked women taken from behind comparing them to “new, used and worn shock absorbers”, a screenshot of a video of a woman in a bikini top, and references to persons who left the group as “soft c*cks and p*ssies”.
In evidence before Commissioner Bernie Riordan, the employee highlighted that Ventia had received a complaint about another employee, ‘SG’, involved in the Facebook group, but they only received a written warning for their conduct.
In the Commissioner’s view, the comments of SG were more offensive than those posted or shared by MP. The Commissioner also noted,
“The photo of the nude bottoms, whilst some would argue as pornography’, are images that can be seen on any beach around the world except for a thin piece of fabric approximately 1 cm in width”.
In summary, Commissioner Riordan noted,
“I am satisfied that the conduct of the Applicant does not cause serious or irretrievable damage to the employment relationship. The Applicant’s actions do not damage the Respondent’s interests except for some possible minor embarrassment with Defence. I do not regard participation in a private chat, amongst friends and almost exclusively out of hours, to indicate a repudiation by the Applicant of his conduct of employment”.
The Commissioner also recognised contrition on the part of MP, noting,
“The Applicant has made a mistake. Based on his conduct during the investigation and his evidence, I am satisfied that the Applicant has learnt his lesson, was truly sorry for his actions, and will not be undertaking any activity which may be regarded as demeaning towards women or which is contrary to the Respondent’s policies in the future”.
Commissioner Riordan also found that the investigation undertaken against MP had been deficient in that it incorrectly attributed more posts to MP than he actually posted. He also accepted evidence that the language used about other employees was common banter at the worksite, which employees did not find offensive.
Commissioner Riordan ordered that MP be reinstated to his former position.
For queries about social media policies, misconduct allegations, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 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.