Offensive Facebook posts justify termination

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Offensive Facebook posts justify termination

The Fair Work Commission has upheld an employer’s decision to dismiss a worker who posted inappropriate and offensive comments outside work hours on their personal Facebook page. The material’s potential to damage the employer’s reputation outweighed the employee’s claims that he was simply voicing his own opinions and entitled to do so.

The case involved an employee of Ability Centre Australia Pty Ltd (the employer), a not for profit organisation that provides services for people with cerebral palsy, autism and other physical and intellectual disabilities.

The employer received a complaint via email from a member of the public concerning various posts placed on the employee’s Facebook page.

After reviewing the page, the employer identified six separate posts during the period from October 2020 to December 2020. The employer regarded the material in the posts as highly offensive, involving sexist and racist comments, as well as the use of offensive language.

The employee identified himself as a `General Hand at Ability Centre’, which the employer argued could potentially result in significant reputational damage to the organisation.

Following an investigation during which the employee showed no remorse nor indicated a willingness to cease posting offensive material, he was dismissed.

Deputy President Abbey Beaumont agreed that the termination was fair in the circumstances.

She noted that the employee was bound by a Social Media Policy and Code of Conduct, which he clearly breached. As she noted,

“while initially undertaken outside working hours, a Facebook post does not stop once work recommences…It would be therefore foolish of employees to think they may say as they wish on their Facebook page with total immunity from any consequences”. She agreed that the Code “set out the Respondent’s commitment of ensuring all employees, volunteers and governing body members act ethically, responsibly and in the best interests of the organisation and the customer”.

She also dismissed the employees’ argument that he did not intend to offend, stating, “On any objective level, the Facebook posts displays vituperative criticism of Aboriginal people, women, and persons in the media. I am satisfied that the content of the Facebook posts is such, that a reasonable person would be offended by the language used by the Applicant to express himself, and similarly would take offence to the gravamen of the posts”.

Fundamentally, Commissioner Beaumont determined,

His misconduct was manifestly serious, and in clear breach of the contract of employment and the Social Media Policy that governed his employment”.

The application was dismissed.

PW v Ability Centre Australasia Pty Ltd (U2021/1108) 31 May 2021

For queries about social media usage, behaviour outside work, or any 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 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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