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Was it unfair dismissal to sack an employee for breaching the company’s social media policy? Which case won?
12 Nov | Which Case Won

Was it unfair dismissal to sack an employee for breaching the company’s social media policy? Which case won?

by Geoff Baldwin, Parramatta

The Facts

Airport employee dismissed for breach of social media policy

A man had been employed by a company for about fifteen months when he was dismissed for an alleged breach of the company’s social media policy.

The company ran a substantial operation providing logistics services and support to Australian airports. These services included baggage handling. The employee worked at an international airport in an Australian capital city.

Employee’s Facebook page created under an alias

The applicant was an enthusiastic Facebook poster, who said that he usually made a dozen or more posts daily. His Facebook page was created under an alias.

Although he used an alias, one word in the name was the same as a word in his own name, and he used his own photo. Among his postings were a couple which came to the attention of two of his supervisors, who were friends with him on Facebook.

Employee’s colleagues refer disturbing Facebook posts to management

The supervisors referred the postings to the management of the company. A total of five postings were initially relied on by the company as reasons for dismissing the employee, but the most prominent was one in which he had shared a news report of killings by the Islamic terrorist group ISIS, with a comment “we all support ISIS”.

The company suspended the employee with pay on becoming aware of the posts. It also notified the Australian Federal Police and assigned one of its HR employees to investigate its concerns. The employee was interviewed twice as part of these investigations.

Employee dismissed and lodges unfair dismissal claim with Fair Work Commission

The company took the view that the employee’s Facebook posts were in breach of its social media policy and reflected adversely on its reputation. At the end of the second meeting, the employee was advised that he would not be offered any further shifts, effectively entailing his dismissal.

The employee lodged an unfair dismissal claim with the Fair Work Commission, which had to decide whether or not his sacking did indeed constitute unfair dismissal.

casea
The case for the employee
  • None of my social media posts mentioned my employer, the airport where I worked or the aviation industry. There was no connection whatsoever between my private social media comments and my employment.
  • The Facebook page where I made the posts was set up under an alias, not my real name. This makes it even less likely that my comments would have been associated with my employer.
  • Some of the posts were merely sharing publicly available news items.
  • When I made the comment about ISIS, I was being sarcastic. This would have been clear to anyone who read back through my earlier posts.
  • Just because two of my colleagues were concerned by my social media postings does not mean that I was in breach the company’s social media policy. I have a right to comment on political issues of interest to me in my private time.
  • I have been denied natural justice. The “investigation” that the company supposedly conducted was a sham, designed only to create the appearance of a fair process. In fact, my dismissal was a foregone conclusion.
  • I have had an unblemished employment record up to this point and the commission should find that I was unfairly dismissed.
caseb
The case for the company
  • On commencing employment with us, the employee was provided with extensive training on security and airport safety. He was similarly aware of the company’s social media policy.
  • Under the Aviation Transport Security Regulations 2005, it is an offence to make a threat about aviation security. It is no defence to say that a comment was sarcastic or a joke. The employee was aware of this.
  • The articles shared on social media by the employee purport to support organisations that have engaged in recognised terrorist activities, including the targeting of passenger aircraft. The employee’s postings constituted a counter-terrorism concern and a security risk.
  • While the employee’s Facebook page was created under an alias, he used his own photo, so he was clearly identifiable as the author of the postings.
  • The employee offered no adequate explanation as to why he was accessing radical political websites, or “liking”, “sharing” or commenting on the posts from these websites on social media accounts which were linked to other employees of the company.
  • The employee offered no response to concerns expressed by his co-workers and by management about the nature of his postings, which had the potential to harm the company, particularly given that he worked in baggage handling, with its obvious vulnerability to bomb attacks.
  • Our concern over the employee’s social media posts was a valid reason for his dismissal. It was not a disproportionate response and the commission should find that he was not unfairly dismissed.

So, which case won?

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Expert commentary on the court's decision

Geoff BaldwinConsultant Lawyer
“The Fair Work Commission found that the employee’s social media posts were not a valid reason for dismissing him.”
What is unfair dismissal?

Under section 387 of the Fair Work Act 2009, a dismissal is “unfair” if it is “harsh, unjust and unreasonable”. Over a number of years courts have made clear that this test is to be applied conjunctively, that is to say that, for a dismissal to be held to be unfair, all three of these descriptions must apply.

The same section commands the Fair Work Commission, in making this assessment, to have regard to a number of specified factors, including whether there was a “valid reason” for the dismissal; whether the employee was told of the reason; and whether the employee was given a proper opportunity to respond to the reason.

Fair Work Commission finds employee was unfairly dismissed

The Fair Work Commission, accepting that the “ISIS post” was the only matter on which the company could rely in defending the dismissal decision, held that it was not a “valid reason” for dismissing the applicant. (See Singh v Aerocare Flight Support Pty Ltd [2016] FWC 6186.)

Although the employee, Mr Nirmal Singh, was given extensive time to respond in the two meetings, the commission thought that Aerocare’s officers who were involved had been unreceptive to his responses.

It can be inferred that Aerocare’s case was not assisted by the fact that the company initially relied on all five social media posts, but had to concede, before the decision was made, that four did not breach the social media policy.

Compensation paid to employee reduced by 40% due to his misconduct

At the same time, the commission did not find Mr Singh blameless and clearly thought that he had overstepped the mark. The commission did in fact not agree that the ISIS post was sarcasm, calling it instead a “ridiculous post”.

The commission assessed the compensation payable to Mr Singh as the wages lost between the date of his dismissal and the date on which he found a new job, but reduced that amount by 40% on account of his misconduct.

Social media creates new challenges for employers

The explosion of social media has presented employers with new challenges and has considerably blurred the once clear line between the work and private activities of employees.

Most employees, it might be thought, do not have Mr Singh’s zeal for high-volume posting of political content; but even so it can be difficult for employers to craft a social media policy which is not either of limited effectiveness because of its breadth and generality; or else detailed and prescriptive in such a way as to impose excessive and possibly unintended restrictions.

Company forced to choose lesser of two evils

Without a doubt, Aerocare was in a difficult position when it considered what should be done about Mr Singh’s social media activity.

As the company explained, if the media had become aware of the “We all support ISIS” post, it could have caused panic, furore and concern about public safety and the reputation of Aerocare and that of its client, Virgin Australia.

One of Aerocare’s representatives pointed out during the hearing that the company was “not in a luxurious position to provide the benefit of the doubt” to Mr Singh, at a time when the national security threat environment in Australia was at a level of high alert.

Social media postings and commentary on terrorist action a cause for concern

In its submissions to the Fair Work Commission, Aerocare explained that Mr Singh’s regular postings and commentary on terrorist action were in themselves alarming. It was not inconceivable that he could have become radicalised at some point in the future.

If this had happened, Aerocare “would be pilloried for failing to have taken action at this time to remove him from employment in an easy access to an aviation security zone”.

Balanced against these considerations was the risk that if sacked, Mr Singh could lodge a claim for unfair dismissal – which he did.

For those of us who travel by air, it may be gratifying that Aerocare chose to risk the unfair dismissal claim, rather than allow for even the most remote possibility of threat to public safety.

WHS risk management matrix and company’s choice between possible outcomes

Although there is no direct mention in the decision of this, pretty plainly Aerocare was engaged in risk management. The risk arising from an adverse decision on the dismissal was a modest financial cost, and possibly some adverse publicity (although likely to be limited to the local area where Mr Singh was actually employed).

However, the consequences of failing to act might arguably have extended to the collapse of the business altogether, given its major client Virgin and the propensity for terrorism-related publicity to spread nation-wide.

Anyone familiar with the standard WHS risk management matrix will recognise the choice here between an outcome which was quite likely, but would cause only a moderate amount of harm; and an event which was possibly much less likely to happen but which, if it did, would probably have had a catastrophic effect.

Acknowledging that Aerocare’s management would have thought long and hard, the choice could fairly be described as a no-brainer.

Should you make an unfair dismissal claim?

The case is highly informative from another perspective also, as it illustrates the unwanted outcomes that can stem from unfair dismissal claims.

Mr Singh took only seven weeks to find other employment at the same airport, with the same security access that he had enjoyed while employed by Aerocare. However, due to the media attention to his unfair dismissal claim in the Fair Work Commission, his employment with his new employer also came to an end.

If you are considering an unfair dismissal claim, it is worth bearing in mind that many industries have a highly effective grapevine and news can travel fast. It stands to reason that employers can be wary of employing people who are perceived to be litigious.

Just because you can make an unfair dismissal claim doesn’t necessarily mean that you should. It might be worth considering the bigger picture and your future employability, rather than making an unfair dismissal claim because “they’re wrong and I’m right”.

Capacity to continue your career much more valuable than compensation

I remind my clients that it is legally impossible for the Fair Work Commission to order compensation of more than six months’ pay in response to an unfair dismissal application. Orders for six months’ compensation are rare to the point of non-existence.

However badly wronged you might have been, six months’ pay isn’t going to keep food on the table for the next twenty years. I generally don’t discourage people from actually lodging claims, because there’s an automatic mediation process before you get to litigation before the FWC.

What I do encourage is accepting an offer of payment, even if only a month’s pay is offered, on the condition that the employee is allowed to be treated as having resigned, and given a certificate of service, so he/she can present to prospective employers with an apparently clean slate.

If it hasn’t yet got to litigation, there is no publicity. In a nutshell, the capacity to continue your career is 100 times more valuable than compensation.

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.
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