No Comments

Employment Law – Background

The Fair Work Commission’s decision in Colby Somogyi v LED Technologies Pty Ltd, where the FWC awarded an employee compensation after his dismissal for crude Facebook posts, provides a warning to employers of the care that needs to be taken in addressing issues arising from employee use of social media.

Facts
• A company dismissed a sales representative after posting crude comments on Facebook suggesting that a woman gave sexual favours to her boss for a promotion
• The company argued that as the employee posted the comments during work hours and directed the comments at the business, one of its employees or customers, it was “clearly inappropriate”
• The company believed that the employee’s opinions did not align with its objectives of promoting a safe workplace free of harassment, victimisation or sexual abuse
• They claimed that the employee had breached its social media policy, which prohibits inappropriate social media use at work

• However, the employee argued that the dismissal was unfair because he was not given an adequate chance to respond. He was not informed that the Facebook post was the catalyst for his dismissal, as the company did not respond to his queries as to why he was dismissed
• The employee claimed that his posts were not directed at the company, and were actually in reference to his mother being bullied at her workplace
• The employee claimed he posted the comments during his break and that he was unaware of the company’s social media policy

Decision

The Fair Work Commission found:

• although the content of the Facebook post was “undoubtedly crude and immature”, the dismissal was unfair because the comment was not directed at the company or any of its employees
• there was no evidence suggesting that the employee was not on a break at the time he made the Facebook post
• there was also no evidence that the employee had been provided with a copy of the social media policy. However, it was noted that the company’s concerns about the vulgar language in the post were “tempered” by the fact that similar language was used in their workplace
• there were “obvious issues” with the manner of the dismissal. These included the company’s failure to give the employee “any real opportunity to respond to its decision to dismiss him and its limited HR expertise”
• ultimately, the dismissal was found to be unfair and the employee was awarded $6,238 in compensation

Tips for Employers

• review this Fair Work Commission decision

• seek the assistance of an employment lawyer to understand the impacts of this Fair Work Commission decision
• ensure that if disciplinary action is taken against an employee, that they are afforded procedural fairness including giving the employee concerned a proper opportunity to respond
• ensure that policies and procedures concerning social media are up to date and properly communicated to employees
• fairly, consistently and lawfully respond to breaches of employment conditions and employment law policies
• damages can apply for breaches of employment contracts and some employment law policies (which an employment lawyer can advise on)

More Information
Please call the leading employment lawyers in Parramatta, the Matthews Folbigg Workplace Solutions team on 9635-7966 to speak with one of our employment lawyers.