Stupidity not necessarily a sackable offence, says Fair Work Commission
We all know not to make jokes about bombs when we go through the airport. Nothing could get you kicked off a flight faster. It’s a guaranteed way to find yourself carted off by burly border protection officers.
But a Perth airport baggage handler who was sacked for saying “We all support ISIS” on social media has managed to get $4,800 compensation for lost salary from the Fair Work Commission. (See Mr Nirmal Singh v Aerocare Flight Support Pty Ltd  FWC 6186.)
This case demonstrates that it is worth challenging cases of unfair dismissal. On the surface it does sound ridiculous for anyone to be paid compensation after making a remark of this nature, but the commissioner had a reason for coming to her decision regarding the unfair dismissal.
Comment made in closed group on Facebook and claimed to be “sarcastic”
The baggage handler argued that the post was a sarcastic comment made as part of an ongoing conversation, and that he has never supported terrorism in any form. He produced posts that he had made against terrorist groups and supporting the government’s policies on immigration and anti-terror laws.
He argued that the post was made under a pseudonym which he used on Facebook as part of a conversation in a closed group. It was spotted by two work colleagues who were members of the same Facebook group and who alerted their supervisor.
When the baggage handler found that his employer had concerns, he offered to delete the comment and to delete his Facebook profile altogether. “Everyone makes mistakes,” he said.
Company claims that employee breached social media policy
The employer argued that anyone who made such a comment at an airport would be banned from flying and that they could not accept the “I was just joking” excuse. The company had a strict policy on social media use and the employee had breached it.
Commissioner Jennifer Hunt described the comment as “incredibly stupid”. She stated: “The ISIS post does not even have the look of sarcasm. It is not witty. It is not funny. It is a ridiculous post.”
Dismissal deemed to be unreasonable even though comment was “incredibly stupid”
Although posting the comment online was stupid, the law requires the employer to have a more powerful reason for sacking an employee than one instance of stupidity on the part of that employee. The handler had not made the comment at the airport or on a social media site linked to the airport. The comment was not made under his own name and it was made in a closed Facebook group.
Once the employer knew that the employee was not a threat and was satisfied that he did not support a terrorist group, under the law they should have given him a second chance.
Commissioner Hunt found the dismissal to be “harsh, unjust and unreasonable”. She said the employer should have been satisfied when it concluded after an internal examination that the handler did not support ISIS and he was not a threat. They should have accepted that it was just an incredibly stupid post.
As the baggage handler had found another job, the Commissioner did not have to rule on his reinstatement. Instead he was awarded $4,800 in compensation for lost wages.
Immediate sacking of employee an excessive measure in the circumstances
This case demonstrates that both employer and employee need expert legal advice if this sort of case comes up. The employer did the right thing in alerting the Australian Federal Police, but sacked the baggage handler almost immediately without waiting for a police report.
The employer argued that if a passenger at an airport said they supported ISIS or made a joke about a bomb, they would be banned from flying. The airport would be evacuated. If someone joked on a plane that there was a bomb on board, it would have to make an emergency landing and the passenger would be detained.
But that was not the case here. The employee made the comment in a closed Facebook group, under a pseudonym, and it was part of an ongoing conversation that should have been viewed in context.