Full bench decision: Summary
In summary, Mr Stutsel, the employee and a truck driver with Linfox, made a number of inappropriate and offensive comments on his Facebook page concerning two managers at his workplace. Following an investigation by the employer, the employee was dismissed and he subsequently brought an action for unfair dismissal.
The full bench had to grant permission to appeal, and in doing so referenced the topic or key issue, namely use of social networking sites. Referring to the parties’ arguments on this point, the significance of the subject matter appears to be the public interest in, and increasing prevalence of, social media in the workplace.
An employee’s negative comments on social networking sites may lead to termination
Turning to the substantive grounds of the appeal, the full bench essentially held that it was open to the Commissioner, on the facts, to find the employee’s dismissal was unfair. Importantly, however, the full bench disagreed with the earlier characterisation of the comments as having the flavour of a ‘pub-style conversation’ and highlighted the public nature of social media commentary and the potential for it to be very widely disseminated. Discriminatory, offensive or derogatory comments made on social media sites by employees, about other employees or their employer, may be sufficient grounds for termination.
The message here to employers is that this case reinforces the importance of having a social media policy and ensuring that it is well implemented. On the facts here a company social media policy could have:
Put simply, a social media policy accompanied by good training can educate employees on how to engage with social media constructively, harnessing the many benefits to employers whilst simultaneously mitigating the inherent risks.
Sarah Waterhouse, Paralegal, BlandsLaw