In Linfox Australia Pty Ltd v Glen Stutsel [2012] FWAFB 7097 Fair Work Australia dismissed an appeal by Linfox against a Commissioner’s decision that its employee had been unfairly dismissed by the Company, and ordering that he be reinstated in his employment and compensated for part of his lost wages.

The truck driver’s employment was terminated for serious misconduct following the posting of comments about two of his managers on his Facebook profile page.

The inconsistency of the company’s approach to Facebook use by employees and the lack of a social media policy was found relevant.

The comments posted on the employee’s Facebook page regarding the managers were offensive, derogatory and discriminatory, and included suggestions of dishonest and underhanded conduct, and comments of sexual misconduct.

The Group Manager for Workplace Relations concluded that the employee’s conduct on Facebook amounted to sexual and racial discrimination, which breached Company policies relating to equal opportunity and diversity.

The Commissioner took into account a range of “other matters” in concluding that the dismissal was harsh, unjust and unreasonable. These included the differential treatment by the Company of the other employees who made comments on the Applicant’s Facebook page. In this regard the Commissioner noted that none of the other employees who made offensive comments on the Facebook page were the subject of any sanction by the Company. The Commissioner also took into account the employee’s limited understanding of the employee as to the privacy of Facebook communications and his “extremely good employment record over some 22 years, his age and his employment prospects”.

In dismissing the appeal Fair Work Australia said:

“The posting of derogatory, offensive and discriminatory statements or comments about managers or other employees on Facebook might provide a valid reason for termination of employment. In each case, the enquiry will be as to the nature of the comments and statements made and the width of their publication. Comments made directly to managers and other employees and given wide circulation in the workplace will be treated more seriously than if such comments are shared privately by a few workmates in a social setting. In ordinary discourse there is much discussion about what happens in our work lives and the people involved. In this regard we are mindful of the need not to impose unrealistic standards of behaviour and discourse about such matters or to ignore the realities of workplaces…

In the present case, the series of Facebook conversations in which the comments were made were described by the Commissioner as having the flavour of a conversation in a pub or cafe, although conducted in electronic form. We do not agree altogether with this characterisation of the comments. The fact that the conversations were conducted in electronic form and on Facebook gave the comments a different characteristic and a potentially wider circulation than a pub discussion. Even if the comments were only accessible by the 170 Facebook “friends” of the Applicant, this was a wide audience and one which included employees of the Company. Further the nature of Facebook (and other such electronic communication on the internet) means that the comments might easily be forwarded on to others, widening the audience for their publication. Unlike conversations in a pub or cafe, the Facebook conversations leave a permanent written record of statements and comments made by the participants, which can be read at any time into the future until they are taken down by the page owner. Employees should therefore exercise considerable care in using social networking sites in making comments or conducting conversations about their managers and fellow employees…

…In the present matter the Commissioner considered that the statements and comments made by the Applicant were distasteful. However when viewed in the context of the Facebook conversations he considered that they were not of such a nature as to warrant dismissal for serious misconduct, or even as to constitute a valid reason for termination. Some of the comments were so exaggerated or stupid as not to amount to any credible threat against the managers. Other comments were not of such a serious nature as was contended by the Company in the proceedings before the Commissioner and on appeal. Furthermore, some of the comments were not made by the Applicant but by one of his Facebook friends…

…We have carefully considered the evidence and material before the Commissioner and the submissions on appeal. We consider that the conclusion reached by the Commissioner was reasonably open to him in the circumstances of the case and having regard to the context in which the conduct occurred and an overall assessment of the gravity of the conduct. “