A recent decision of the Fair Work Commission (the Commission) once again illustrates the perils of social media and employment.
The Applicant was employed as a finance broker by the Respondent from about February 2013.
The Applicant was summarily dismissed on 19 June 2020. On 10 July 2020, the Applicant made an application to the Commission alleging that he had been unfairly dismissed from his employment.
On or about 17 June 2020, the Applicant posted a meme on Facebook which included an image of him and a female colleague, with the words, “You pulled out right?” “Yeah, of course”, with a picture of a washing machine leaking suds onto the floor. He had done so after having received the colleague’s consent to post the image. However, after the image was posted, the colleague received several comments or responses from others. She asked the Applicant to remove the meme, which he eventually did.
Later that evening, the Applicant posted a second meme to Facebook with a picture of himself and the words, “That moment after you’ve dropped a meme with the aim to upset some cxxxts….and you get to hear, cxxts are upset”.
The Applicant was asked to attend a disciplinary meeting on 18 June 2020 in relation to the events where he responded that “he did not consider the memes to be inappropriate as he did not have the Respondent listed as his employer on social media.” He also advised that he had the permission of the colleague whose image he used to make the sexually explicit meme.
Following that meeting, the Applicant was provided a show cause letter dated 18 June 2020, outlining the allegations and his responses from the meeting including that the images that the Applicant used were taken within the workplace for use in workplace material.
The letter advised that on review of the Applicant`s employment history there had been similar concerns in relation to inappropriate comments regarding women. The letter also requested the Applicant to provide in writing by 12pm 19 Friday June 2020 as to why his employment should not be terminated. The Applicant did not respond in writing. The Applicant was also required to attend a meeting to be held at 2pm 19 June 2020.
Following the meeting the Applicant received a letter dated 19 June 2020, in which the Respondent confirmed that the Applicant’s employment was to be terminated on the grounds that the posting of these memes constituted social media misuse, misuse of company property, sexual harassment and a failure to adhere to the Respondent’s policies or act in its best interests.
The Applicant claimed that the former owners took a “hands off” approach to employee management, permitting or ignoring “all sorts of conduct”.
This included racist and sexist emails, swearing at and engaging in “aggressive or abusive” conversations with colleagues, clients and suppliers, and “regular sexual harassment” in the form of “public groping” and sexually suggestive comments.
Despite engaging in some of the behaviour himself, the applicant said the company promoted him to a leadership position in 2019 and did not reprimand him for the way he spoke to clients until later that year.
The Deputy President ruled that “the culture at the Respondent’s business fell considerably short of the standards expected of a workplace and that there were imperfections with the Respondent’s process insofar as multiple ‘final’ warnings were provided which may have caused some opacity in the mind of the Applicant as to the consequences of his conduct. It must be noted though that some of that management action occurred under the previous owners. The new owners gave their employees training in respect of its policies and procedures and the evidence before me suggested that steps were being taken to improve the workplace culture, though based on some of the evidence given there was still a considerable way to go. Their actions in this matter are consistent with a reforming workplace.”
On considering the case Deputy President Nicholas Lake found that the Applicant’s posting of the first meme, coupled with his (arguably, retaliatory) posting of the second meme, constituted serious misconduct.
Deputy President Lake found that “The Applicant’s conduct plainly gave rise to a valid reason for dismissal and the Respondent conducted a fair and reasonable disciplinary process before finally concluding that dismissal was appropriate”.
Mr Matthew Thompson v 360 Finance Pty Ltd [2021] FWC 2570 (6 May 2021)
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