We wrote in 2011 about a FWA decision involving social media misuse by a Linfox employee. The case went on appeal and the FWA full bench delivered their decision in October, upholding the finding at first instance that the employee was unfairly dismissed and finding that the orders for compensation and reinstatement were appropriate in the circumstances (Linfox Australia Pty Ltd v Glen Stutsel [2012] FWAFB 7097). The employer, Linfox, has since  filed a federal court appeal against the full bench decision, which will be heard next year.

Full bench decision: Summary

In summary, Mr Stutsel, the employee and a truck driver with Linfox, made a number of inappropriate and offensive comments on his Facebook page concerning two managers at his workplace. Following an investigation by the employer, the employee was dismissed and he subsequently brought an action for unfair dismissal.

Commissioner Roberts, at first instance, found that the dismissal was unfair and ordered that Mr Stutsel be reinstated to his former position and paid compensation for lost wages. In making this finding, the Commissioner noted in particular:
·         the employee’s inadequate knowledge of his Facebook account’s privacy settings;
·         the lack of a company social media policy;
·         the inconsistent treatment of employees engaged in similar behaviour;
·         and the employee’s lengthy and positive employment history.

The full bench had to grant permission to appeal, and in doing so referenced the topic or key issue, namely use of social networking sites. Referring to the parties’ arguments on this point, the significance of the subject matter appears to be the public interest in, and increasing prevalence of, social media in the workplace.

An employee’s negative comments on social networking sites may lead to termination

Turning to the substantive grounds of the appeal, the full bench essentially held that it was open to the Commissioner, on the facts, to find the employee’s dismissal was unfair. Importantly, however, the full bench disagreed with the earlier characterisation of the comments as having the flavour of a ‘pub-style conversation’ and highlighted the public nature of social media commentary and the potential for it to be very widely disseminated. Discriminatory, offensive or derogatory comments made on social media sites by employees, about other employees or their employer, may be sufficient grounds for termination.

The full bench’s view was that in future, the increasingly widespread use of social media and the increased implementation of social media policies in the workplace may mean employees will no longer be able to claim ignorance of privacy settings or social media use as mitigating factors.
The message here to employers is that this case reinforces the importance of having a social media policy and ensuring that it is well implemented. On the facts here a company social media policy could have:

·         established what constituted appropriate behaviour
·         cross-referenced any other applicable company policies covering discrimination and harrassment
·         and established what the consequences would be in the event that the policy was breached.

Put simply, a social media policy accompanied by good training can educate employees on how to engage with social media constructively, harnessing the many benefits to employers whilst simultaneously mitigating the inherent risks.

We will continue to monitor the pending federal court appeal and provide any updates as they occur.

Sarah Waterhouse, Paralegal, BlandsLaw

Dominic Woolrych

Dominic is the CEO of LawPath, dedicating his days to making legal easier, faster and more accessible to businesses. Dominic is a recognised thought-leader in Australian legal disruption, and was recognised as a winner of the 2015 Australian Legal Innovation Index.