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The Fair Work Commission has recently upheld the dismissal of an employee of the Australian Council of Trade Unions (the ACTU), who had been dismissed based on inappropriate posts he had made on Facebook.

The posts included expressions of the employee’s support for anti-vaccination demonstrations and various comments expressing homophobic, transphobic, and racist views.

Interestingly, the Fair Work Commission found the dismissal to be fair, not on the basis of the offensiveness of the posts, but rather because they were inconsistent with the public position his employer (the ACTU) took on various issues including, the ACTU’s support for:

  • LGBTQIA+ people over many years including with respect to marriage equality and campaigning against homophobia, biphobia, transphobia, and intersexism
  • justice for First Nations People
  • campaigns for the elimination of gendered violence at work and in the community
  • people of colour, and culturally linguistically diverse (CALD) workers.
  • all workers to be vaccinated for COVID-19, as a fundamental matter of workplace and community health and safety.

 

What happened in the case?

Having been concerned with comments the Applicant had posted on the ACTU’s internal “Slack” messaging service re anti-vaccination demonstrations, the ACTU decided to review the Applicant’s Facebook posts which, due to the Applicant’s privacy settings, were publicly visible on Facebook.

The ACTU found that the Applicant had made several recent posts including comments supporting anti-vaccination protests and posts expressing racist, homophobic and transphobic views.

After a short disciplinary process whereby the employee was given an opportunity to comment on the various posts, he was dismissed for serious misconduct. He subsequently brought a claim for unfair dismissal which, after an initial conciliation hearing was unsuccessful, came to be determined by the Commission.

 

What did the Fair Work Commission decide?

In finding that the employee had not been unfairly dismissed, the Commission placed great emphasis on the fact that the employee’s posts were inconsistent with the ACTU’s public position on various issues, and that a public post from one of their employees which was in direct opposition to such posts, had the potential to damage the reputation of the ACTU.

The FWC also found that the posts breached the employee’s contractual duty to follow ACTU’s internal policies and duty of “fidelity” (ie faithfulness) to his employer that was implied into his employment contract. An implied duty is one that does not have to be written into the employment contract but is held to exist in all employment relationships.

The Commission summarised its task in cases like this:

      1. What must be said at the outset of my consideration of the Applicant’s conduct is that the Applicant’s personal views and beliefs are not “on trial,” notwithstanding some of those views may not be shared by a sizeable proportion of the population. Rather, it is whether the expression of those views on his personal Facebook account and on the ACTU’s Slack platform were contrary to the explicit and/or implied obligations he owed to his employer, whether the conduct constituted serious misconduct and established a valid reason for his dismissal.
      2. Central to establishing whether there was a valid reason for the dismissal is that of determining whether the Applicant’s out of hours social media conduct was a matter that bore upon his employment relationship and whether the conduct was contrary to his contract of employment and/or whether it constituted serious misconduct. Helpfully, the matter of out of hours conduct has been subject to previous consideration by the Commission. The definitive Commission authority on out of hours conduct is that of Rose v Telstra Corporation Limited[93](Rose v Telstra) where Ross VP (as he then was) said as follows;

“It is clear that in certain circumstances an employee’s employment may be validly terminated because of out of hours conduct. But such circumstances are limited,:

      • the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or
      • the conduct damages the employer’s interests; or
      • the conduct is incompatible with the employee’s duty as an employee.

In essence the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee.

Absent such considerations an employer has no right to control or regulate an employee’s out of hours conduct.”

In response to the arguments from the employee that the ACTU had suffered no damage from the posts, that the posts would have only have been viewed by a small number of people (who may have agreed with their content) and that no complaints were received by the ACTU about the posts, the FWC said this:

      1. At a more general level, the Applicant states his Facebook account does not include a picture of himself, does not identify his geographic location or that he was an employee of the ACTU. He further states that he has never posted comments about the ACTU or affiliate unions and has not been inundated with requests from ACTU staff to be ‘friends’ with him on Facebook[78]. Nor does he accept that he is a ‘public face’ of the ACTU and that it is improbable that hi “obscure Facebook account” would be viewed widely and linked back to the ACTU.

[…]

      1. I accept that the Applicant did not hold a senior role in the ACTU, that he may have held a low profile with ACTU affiliates or union members and that he did not have a large Facebook group. Those factors do not mean there was no risk of reputational damage to the ACTU or risk to its staff. The Applicant’s Facebook account was public and open to be shared and circulated well beyond his immediate circle of ‘friends.’ Once the posts were made, they were in the public domain unless and until their removal. There is also a certain tension in the Applicant’s claim of relative obscurity while at the same time claiming to have a commitment of “speaking truth to power.”
      1. The Applicant claims that his Facebook posts “speak truth to power” and cannot be labelled as offensive and do not unfairly or unreasonably offend, humiliate, intimidate belittle, undermine, scare, exclude, or embarrass anyone. The difficulty with this argument is that it the Applicant’s opinion as to how other persons might view his posts. Whether they are objectively offensive is irrelevant as it is whether the views expressed are contrary to his obligations under his contract of employment. As set out above, a number of the Facebook posts were in breach of his contract of employment.

 

Overall, in light of the above, the Commission found that the employee had not been unfairly dismissed and his application was rejected.

 

Lessons for employers

We would recommend that employers have clear policies on the use of social media and on rules about employees making public posts that are incompatible with the employer’s values.

It is unclear whether the Commission would have come to the same view (that dismissal was justified) if the employee had not worked for a public-facing organisation such as a trade union who had publicly expressed views regarding support for minority groups and for COVID vaccination.

 

Need further help?

If you require any assistance regarding social media policies, termination of employment, or any other area relating to employment law, please contact EI Legal.

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