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Compensation Awarded Following Dismissal for Social Media Post

A Sydney-based Child Protection Case Worker has been awarded compensation after a tribunal found that her termination was harsh despite her having:

- claimed on Facebook that the military would remove kids from unvaccinated parents, stating "By the end of August the military will be knocking on your door if you haven't had a jab, or they will take your kids off you! Wake the fk up Australia!".

 and

- posted an image depicting the former NSW premier as Hitler. The post shared by the employee featured an image of the NSW Premier with a "Hitler moustache" superimposed. This image was featured next to an image of Adolf Hitler and the words "if it fits wear it".

The employee had also been found to have breached public health orders by attending a public protest against the State Government’s response to the COVID-19 pandemic.

Her employer, the NSW Department of Communities and Justice, dismissed the employee late last year after making a finding the her actions and social media activity constituted misconduct and breached both the Code of Ethical Conduct and the NSW government sector core values.

In responding to the allegations, the employee told her employer that she:

- regretted her actions,

- agreed that the Hitler post did not uphold the Premier's right to dignity and

- understood how the post about removing children could have affected her colleagues in the child protection arena.

The employee assured her employer that she would not repeat the behaviour but did disclose that she was suffering from perinatal mood disorder following the birth of her child. A report from the employee’s treating clinical psychologist said that in her medical opinion, the employee’s actions had been:

- "driven by genuine fear” and anxiety about what she perceived as being threats to the wellbeing of people in her society.

- exacerbated the employee’s concern around what “unchallenged losses of public freedom could mean for the next generation".

- experienced increased signs of post-natal depression because of the increased COVID-19-related news stories and social media posts.

- triggered by intergenerational trauma connected with her mother's experiences as a Polish Jew fleeing Argentina due to political corruption and her grandparents' experience living through genocide following Government reports that additional police would be deployed to patrol the streets and that military personnel would be deployed to support vaccination processes.

In addition to her medical condition, it was noted by the treating psychologist that:

- the employee’s husband had lost a significant amount of work and

- COVID-19 restrictions had significantly impacted upon her ability to provide support and care for her disabled parents.

In consideration of the above personal factors, the treating practitioner stated that the loss of the employee’s job and the impact that this would have on her future financial security would be "very harsh, unfair, and unreasonable".

In making their findings, the NSW IRC Commissioner found that the employee’s conduct in having shared social media posts and breaching public health orders to attend a rally were both serious enough and “sufficiently connected” to her public sector employment to warrant dismissal. The Commissioner stated that the reposting of an image of the Premier having been defaced to resemble Adolf Hitler was “an appalling act”, that her actions were unfair and disrespectful to the then Premier and that her conduct represented a “clear breach” of the public sector code of conduct requiring employees to treat people with dignity and respect.

The employee’s conduct in having spread fear mongering “rubbish” about the prospect of children being removed from non-vaccinated parents was deemed to have been likely to cause significant upset and resentment amongst other child protection caseworkers “given the highly sensitive nature of the work that they do with vulnerable children and families," the Commissioner held.

The Commission found that as the employer had provided the employee with an ample opportunity to respond to the allegations and took on board all mitigating factors raised, the employee’s dismissal was neither unjust nor unreasonable. However, the dismissal was deemed to be harsh. Although the Commissioner acknowledged that the caseworker's explanations did not excuse her conduct, there were factors affecting her personal circumstances, including that of the employee and her family facing "dire financial circumstances” that the Tribunal would take into consideration when exercising “its discretion in relation to the issue of relief". When considering the circumstances of the employee’s dismissal and their personal circumstances", the Commissioner awarded 12 weeks' pay as compensation.

If you require advice or assistance with understanding what options are available in relation to monitoring employee social media usage or should you require support regarding any HR matter, please contact the team at HR Advice Online at [email protected] or on 1300 720 004.

 

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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