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Unfair dismissal – Facebook comments

Dismissal – Face book comments

Blake K, ‘Facebook Comments Insufficient to Justify Dismissal’ (2010) 16(6) Employment Law Bulletin 87

Payne C, ‘Facing Facebook Facts’ (2012) 32(3) Proctor 28

[2010] FWA 7358 Vic Fitzgerald v … Escape Hair Design (A made negative comments on Face book about hairdressing industry which may have reflected badly on her employer – A wrote “Xmas ‘bonus’ along side a job warning, followed by no holiday pay!!! Whoooooo! The Hairdressing Industry rocks man!!! AWSOME!!! [sic]” – comments not found sufficient to justify dismissal – Appeal allowed re remedy (only) at [2011] FWAFB 1422)

[2011] FWA 5311 Qld O’Keefe v … The Good Guys (the A was upset about pay discrepancies and from his home computer posted offensive and threatening comments towards the operations manager (Ms Taylor) on his Facebook page – about nine other co-workers had access to his Facebook page, but not Ms Taylor – R had policy against such offensive conduct – conduct provided a valid reason for dismissal regardless of whether there was a policy – dismissal not harsh etc)

[2011] FWA 8444 NSW Stutsel v Linfox Australia (the A posted remarks on his Facebook page which were construed as racially derogatory remarks about a manager – FWA did not consider the remarks in context to be so serious – someone else posted inappropriate sexual comments about another manager on A’s page – A mistakenly thought he had maximum security settings on his Facebook page, so that the material was private, and that he was not able to delete comments of others – other employees involved in similar misconduct not disciplined – A’s dismissal harsh etc – A reinstated – Appeal dismissed [2012] FWAFB 7097 – further proceedings dismissed at [2013] FCAFC 157)

[2013] FWC 9642 NSW Little v Credit Corp Group Ltd (the A made inappropriate comments on his Facebook page about an organization R had dealings with – A also made sexually aggressive comments about a new employee of R – both actions amounted to a valid reason for dismissal – dismissal not harsh etc)

[2014] FWC 644 ACT Wilkinson-Reed v Launtoy (adverse comments by A about manager in private Facebook discussion, which would have remained private had manager not accessed his estranged wife’s Facebook page without permission, did not provide a valid reason for dismissal – “It is unlikely that a policy that was an attempt by an employer to control the contents of private emails between their employees third parties, written in their own time and using their own equipment would be found to have the requisite connection to the employment relationship such that an employee could be terminated for a breach” @ 66)

[2014] FWC 9330 Qld Faulkner v BHP Coal (whilst A was in the back of a dump truck which was stationary with its park brake on he discovered his mobile phone in his bag and breached policy by posting a comment on Facebook saying “Zachary J……..your lucky I’m here to get your truck out of the bog you got it into– the policy was not a ‘zero tolerance’ policy and “the consequences of a breach of the new procedure was not clear, and the evidence demonstrated the introduction of the procedure and training documentation was also not adequate” @98 – valid reason for dismissal, but A’s dismissal was harsh etc for procedural reasons and differential treatment – “at least three issues emerged from the [difference between the] show cause and termination letters in relation to the reasoning for the dismissal decision: the level of risk associated with such; having a mobile phone versus using the mobile phone; and having a mobile phone whilst operating a vehicle, as opposed to the vehicle being stationary. The procedural deficiencies undermined the substantive basis for the termination. There was also no consideration of appropriate alternatives to dismissal” @76-77 – A reinstated – see also Boal at Dismissal – Practice, policy …)