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“Offensive and vulgar” Facebook post not a valid reason for termination

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There has been much discussion in recent times about what is appropriate to post on social media when it comes to references to your place of employment.   The general rule is, if you wouldn’t want it printed on the front page of the newspaper then don’t post it online.  Once content is posted online, you lose control over where it ends up, ‘friends’ can share it or ‘retweet’ it instantly.  So, when it comes to posting comments about your bad day at work or issues with your boss, we advise thinking twice before doing so.

Case Study - Somogyi v LED Technologies P/L [2017] FWC 1966 (6 April 2017)

In a recent case, the Fair Work Commission (FWC) found that an ‘offensive and vulgar’ Facebook post was not a valid reason for termination of employment.

The applicant, Somogyi, was employed as a merchandiser and company representative from 13 July 2015.  He was dismissed on 24 August 2016 via a one-minute telephone call where the respondent, LED Technologies (LED), told him to return all company property to the office as he 'was fired' but did not offer a reason why he was being dismissed.

Once the case reached the FWC, LED submitted that Somogyi was dismissed for using social media during working hours, because the posts were offensive and directed at its business and that Somogyi had been previously given 5 written warnings about conduct.

It was alleged that Somogyi made a Facebook post that alluded to an employee's conduct towards a boss, however Somogyi submitted it referred to his mother's boss (who was trying to remove her from her position) not his employer.  LED said the comments made were “offensive and vulgar”.

Despite the post allegedly breaching LED’s ban on social media in the workplace, the FWC found LED failed to ensure staff were aware of the policy.   In addition, Somogyi claims he did not receive written warnings referred to in LED's submission.

Ultimately, the FWC reasoned it was difficult to conclude LED had a valid reason to dismiss Somogyi or if there was a valid reason it had not been properly established by LED as there was a lack of any investigation before the decision to terminate his employment was made.

Commissioner Gregory stated that “while its content was undoubtedly crude and immature the fact it was not directed at LED Technologies, or any of its employees, makes it harder to understand why it can be said to have provided a valid reason for [the employee's] dismissal".

The FWC was satisfied that the dismissal was harsh and unreasonable and accepted that Somogyi was unfairly dismissed.  Somogyi wasawarded $6,238 in compensation, calculated based on loss of earnings as he wasn't being paid as much per month then when employed by LED.

Lessons for Employers

This case is a reminder of the importance of staff training and making employees aware of important policies, particularly those involving technology and social media. 

It is also a reminder that procedural fairness needs to be maintained when dismissing employees.

Information in HR Advice Online guides and blog posts is meant purely for educational discussion of human resources issues. It contains only general information about human resources matters and due to factors such as government legislation changes, may not be up-to-date at the time of reading. It is not legal advice and should not be treated as such.

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