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Fair Work Commission – Social Media Posts

Fair Work Commission – Background

The Fair Work Commission found an employee dismissal to be unfair. Mr Somogyi was dismissed because of vulgar social media misconduct. However, a fair dismissal procedure must be followed by employers.

Fair Work Commission – Facts

In essence:

  • Somogyi was employed as a merchandiser at LED Technologies Pty Ltd
  • on 24 August 2015, he posted on Facebook: “I don’t have time for people’s arrogance. And your not always right! Your position is useless, you don’t do anything all day how much of the bosses c*** did you suck to get where you are?”
  • the post was seen by several of Mr Somogyi’s colleagues before he removed it after five minutes
  • his employer dismissed Mr Somogyi in a sixty second telephone call. The employee was told: “it doesn’t matter. You’re fired”
  • the employer failed to provide the employee an opportunity to explain his conduct
  • furthermore, the employer mistakenly interpreted that the post was referring to employees of LED Technologies Pty Ltd
  • the employee reposted a ‘clarification’ explaining his original post. He was referring to a hostile employment situation his mother was facing elsewhere

Fair Work Commission – Decision

The Fair Work Commission found:

  • the Facebook post was ‘crude and immature’
  • the post did not constitute a valid reason for dismissal
  • offensive and vulgar language are increasingly part of the common vernacular
  • there was no evidence the post was directed at the business or its employees
  • no evidence that Mr Somogyi was provided a social media policy
  • there was no sufficient connection to the workplace to justify legitimate action against Mr Somogyi
  • Mr Somogyi was to be compensated with the difference in his earnings from another role for a period of six months

Employment Law – Tips for Employers

Unfair dismissal claims must be confined to their own facts. Therefore, our Matthews Folbigg Workplace Solutions employment law team recommends employers:

  • review this Fair Work Commission decision
  • seek the assistance of an employment lawyer to understand the impacts of this Fair Work Commission decision
  • prepare new social media policies as required
  • update employment law policies in response to this Fair Work Commission decision
  • draft new/changes to employment law policies with the assistance of an employment lawyer
  • train and consult with staff about social media in the workplace and the impact it can have on employment
  • fairly, consistently and lawfully respond to breaches of employment contracts and employment law policies
  • penalties can apply for breaches of employment laws including Awards and enterprise agreements (which an employment lawyer can advise on)

Employment Law – More Information

Please call the leading employment lawyers in Parramatta, the Matthews Folbigg Workplace Solutions employment law team on 9635-7966 to speak with one of our employment lawyers. [...]  READ MORE →

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Swearing Did Not Warrant Summary Dismissal

The Fair Work Commission has awarded an Operations Manager $27,787 in compensation following a finding that swearing at another manager was not sufficient to justify his summary dismissal.

Facts

In essence:

  • On or around July 2016, the Operations Manager had a heated argument with the national WHS Manager of Precepts Services Pty Limited (‘the employer’). The WHS Manager happened to be the wife of the employer’s Managing Director.
  • Prior to the argument, the WHS Manager had a meeting with the Operations Manager’s son – who was employed by the employer as an apprentice electrician – in relation to concerns about his performance.
  • The Operations Manager questioned why he was not invited to attend his son’s performance review meeting, and allegedly said to the WHS manager: “Your sneaky husband made that decision, did he?”
  • The WHS manager asked what he had meant by “sneaky”. In response, the Operations Manager referred to a previous phone conversation between his (i.e. the Operations Manager’s) wife and the Managing Director in relation to a dispute over their son’s wages. The Operations Manager relayed that during the phone conversation, the managing director allegedly swore at the Operations Manager’s wife, saying to her “f-ck off, you do not have your facts right”, and then hung up on her.
  • The Operations Manager then allegedly leant over the table of the WHS manager and asked her twice: “How would you f-cking feel if I said get f-cked to you?”
  • In September 2016, the Managing Director directed the Operations Manager to attend a meeting to discuss allegations of misconduct made against him. The Operations Manager attended the meeting, during which he was summarily dismissed.
  • According to the Operations Manager, the Managing Director had a habit of swearing at employees including his own wife (the WHS manager), and regularly punched and kicked walls in the office.

Swearing not sufficient to justify summary dismissal [...]  READ MORE →