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Social Media - Unfair Dismissal

April 10, 2017

A decision by the Fair Work Commission has outlined the issues relating to employees making public comments on Facebook outside of work hours however it has also highlighted the necessity for employer to ensure that matters such as this are properly investigating before jumping to a conclusion.

Mr Nirmal Singh was a casual baggage handler employed by Aerocare Flight Support, an aviation ground handling and services company. It is important to note that Mr Singh possessed an Airport Security Identification Card and was authorised to work within the restricted security-sensitive areas of Perth Airport.

Mr Singh was dismissed by Aerocare after it was discovered by co-workers that he had made posts on Facebook that appeared may have expressed radical views. In one post, Mr Singh linked to an article posted by an Australian Islamic group and included his own commentary, being the words “We all support ISIS.”

Prior to his employment being terminated, Mr Singh attended a meeting with Aerocare management who alleged that his Facebook posts were contrary to the Aerocare social media policy and, given the nature of his job, represented a security risk. Mr Singh claimed that the posts had been sarcastic, that he was opposed to ISIS and extremism, and he was sorry that his posts had been misinterpreted.

That meeting was adjourned to allow Aerocare to review their notes and consider Mr Singh’s explanation. Approximately 10 minutes later, the meeting recommenced and Mr Singh was informed that he would not be offered any further shifts and his employment was effectively terminated.

Mr Singh subsequently made an application to the FWC for unfair dismissal.

In the decision, Commissioner Hunt confirmed that Mr Singh’s post was in breach of Aerocare’s social media policy. It stated that “[it is not] acceptable for employees in the relevant airport environment to post what appears to be support for a terrorist organisation and explain it away as sarcasm, comedy or satire. Mr Singh did a very stupid thing.” The FWC also stated that if Mr Singh had in fact confirmed that he was a supporter of ISIS, it would have no hesitation in finding that the Facebook post was a valid reason for dismissal.

Commissioner Hunt commented that:

  • It was unsatisfactory that Aerocare had failed to properly investigate the complete news feed of Mr Singh’s Facebook account. If time and attention had been taken to review the news feed, Aerocare would have discovered that Mr Singh was not, in fact, a supporter of ISIS.
  • Mr Singh could have been invited to explain his recent Facebook posts to Aerocare, which would have taken no more than 1-2 hours. Such an explanation would have satisfied Aerocare that Mr Singh was not an ISIS supporter. He was not invited to do so.
  • The 10 minute break during the disciplinary meeting was not satisfactory, as it was impossible during that time for Aerocare to have adequately considered all of the issues discussed in the meeting.
  • It would have been appropriate for Aerocare to have continued Mr Singh’s suspension, which would have allowed management to fully consider the issues and to make further inquiries with respect to Mr Singh’s Facebook account.
  • Prior to the meeting, Aerocare decision makers had closed their minds to any explanation from Mr Singh, and they had not considered any sanction other than terminating his employment.

Commissioner Hunt found that there was no valid reason for Mr Singh’s termination and his claim for unfair dismissal was upheld. Mr Singh was awarded compensation the equivalent of 8 weeks’ pay, however that amount was reduced by 40% because of Mr Singh’s misconduct in breaching Aerocare’s social media policy.

This case highlights the importance of conducting through and timely investigations into conduct that appear to be improper or in breach of company policies especially those relating to comments made by employees online and in social media. Sarcasm and satire can be difficult to detect in text-based communication, it is crucial to investigate the context in which those comments are made.

When considering whether an employee’s conduct warrants dismissal, employers must ensure that the employee is afforded procedural fairness in that any explanation provided by the employee it taken into account before the final decision is made and if there any alternative sanctions, other than dismissal, that might be appropriate. Failure to do so may unnecessarily expose the employer to a claim for unfair dismissal.

If your organisation is encountering these types of issues and you are not sure what to do, contact Centium for assistance with training and potential investigations.

This is general information only and does not constitute legal or any other form of advice. If you would like assistance with a workplace matter such as this, or if you require the services of an independent investigator, contact Phil O’Toole  at Centium. Centium has conducted many workplace and employment related investigations and can share lessons learnt and good practices observed across industry.

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