Getting Nasty on Social Media, and the Dangers
A public servant who took to social media to criticise his government department and clients has won his job back after his dismissal was deemed harsh and unfair.
The long-standing Human Services employee made more than 60 derogatory comments over several years, using an alias and during personal time.
He referred to the department clients as “junkies and spastics”, made derogatory comments about other staff, made negative comments in regards to department policies and procedures, and encouraged members of the public to raise concerns about Centrelink processing delays with their local MP.
He also said he was “embarrassed” to work for the department and criticised the government.
His employer claimed he “breached organisational policies, brought the department into disrepute and caused reputational damage” – reason enough for the department to consider it had valid grounds for termination and ended his more than 20 years’ of service.
Although her admitted to making the comments in online forums and the department had engaged in a procedurally fair investigation process prior to dismissal, he claimed the termination of his employment was unfair.
The Fair Work Commission ruled that while there were valid reasons for the dismissal, it was in fact harsh and disproportionate to his actions.
One of the factors the Commission took into consideration at was the department’s entitlement to regulate and take disciplinary action, in relation to the out of hours conduct.
It cited precedent in the Rose v Telstra case, which found that there would not ordinarily be a valid reason for dismissal for an employer to regulate an employee’s private conduct, unless the employee’s conduct fell within the circumstances outlined in this matter.
Ultimately, unless the conduct was of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee, valid grounds for dismissal would be doubtful.
The Commission found that out of the 60 comments, six justified lawful termination for being in breach of department policies.
But it acknowledged the following points in determining his dismissal was harsh and unfair:
• Several of the comments made in the online forums did not actually breach department policies, these comments were in fact being used to justify the dismissal. Furthermore, the comments were justified under the implied freedom of political communication;
• The comments that were found to be in breach of department policies were at the lower end of the spectrum, in terms of their seriousness;
• The fact that the department was not able to demonstrate, as a result of his online comments, that it had actually suffered any reputational damage:
o The fact the comments were made in an online forum with limited members and the fact no complaints were made to the department in relation to the comments, became relevant considerations in this case;
• His personal circumstances were also considered when determining if his dismissal was harsh and unfair or not:
o The positive impact his employment with the department had on his mental health in regards to managing his anxiety and depression;
o The fact he admitted to his actions during the investigation and showed remorse for his actions;
o His clear employment history and record spanning two decades; and
o The difficulties he would face in finding new employment.
If you are looking to terminate an employee, it is necessary to look at all relevant aspects of the case, workplace policies, employment contract and what exactly constitutes a fair, just and reasonable dismissal.
If you have and questions relating to fair and best practice processes for disciplinary action and termination of employment please call the Employer Assistance team for advice. Contact us on 1300 731 988 or firstname.lastname@example.org.
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