Many organisations have particular values and public positions on social issues such as domestic violence, the black lives movement, #metoo campaign, sexuality, racism and vaccinations.  You only have to take a quick glance at Facebook or other similar social media platforms to see that many people have very diverse and in some cases strong opinions on these topics. 

The Australian Council of Trade Unions (ACTU) is not different and although from a political standpoint traditionally lobbies for the rights of workers, is also an employee within themselves.  An interesting case in the Fair Work Commission of Corry v Australian Council of Trade Unions T/A ACTU [2022] FWC 288 dealt with an employee who made opinionated comments on his personal Facebook page. 

What Was Said? 

The ACTU had discovered after he had posted some very odd comments on the internal “slack” program that the employee had expressed comments in a more public forum, namely Facebook. 

  •  “F#$k the Jab’ good lads!” – alongside a photo of a protest; and 
  • I was fleeing domestic violence so I could attend the Blag Lives Natter meeting and it was all gay people and rainbow flags there and we discussed getting drag queen story hour into primary schools ahhhhh your honour… shiiiiiieeeeeeeeet NIBBA (Don’t be afraid to use globo homo Big Lies against them..) [sic]” 

The ACTU had a major problem with an employee expressing such views on a public forum as it went against the: 

  • Code of Conduct 
  • Social media policy 
  • ACTU Public Policy 

Further, as an organisation that had large political elements attached such comments made by an employee would bring the employer’s reputation into disrepute. 

Unfair Dismissal Claim 

As a result, the ACTU decided to terminate the employee’s employment after a verbal (in what could be categorised as) show cause process. 

The ACTU terminated his employment finding his explanation unsatisfactory and the posts “completely inconsistent” with its “clear and unambiguous values and policies”. 

The employee filed an unfair dismissal claim with a number of arguments: 

  • There were no express terms in the employment contract that were breached 
  • Comments were made “out of work hours” 
  • The Facebook profile from where the posts came from did not include pictures of himself, identify his geographic location nor did it identify who his employer was 
  • The social media policy did not cover instances such as which had occurred because comments were made out of work hours 

What Did The Fair Work Commission Say? 

DP Masson stated at [142]: 

“A right to hold and express a strongly held views [sic] does not however mean the Applicant has an unqualified right to publicly espouse views that are contrary to the interests and values of his employer”. 

DP Masson also ruled against the employee’s submission that his Facebook account did not identify his location and did not contain posts critical of the ACTU or its affiliates. DP Masson stated at [154]: 

“Once the Facebook posts were made, they were public and liable to be viewed by other persons beyond his immediate Facebook group. That his Facebook profile was on a ‘public’ versus a ‘private’ setting indicates he was content for the posts to be shared. The vice and virtue of social media is that posts made by ‘obscure’ individuals can be circulated widely and quickly, far beyond the initial Facebook group to which they were initially made available to. The reality is that the Applicant had no control over the post’s circulation, short of removing the post”. 

What is interesting on this point is that the Fair Work Commission did identify there were problems with the reach of the social media policy and that its focus was on “company property usage” or social media use whilst working. Not a lot of stock was placed on the friends linked to the Facebook profile.  It was enough that the Facebook profile was set to public and that this would have reputational damage for the organisation. 

The FWC also applied the principles of Rose v Telstra to establish that the out of work hours conduct was likely to cause damage and was a breach of the duty owed to the employer. 

The FWC had some criticism of the verbal only show cause process and the lack of putting forward the allegation as well as the breach to the employee.  It also did not help that the ACTU seemed to have lacked procedural fairness in allowing more time for the employee to respond and to accede to his request to provide the allegations in writing (say a show cause letter). 

Although there was a lack of procedural fairness on balance the FWC found the valid reason for dismissal. It was not an unfair dismissal. 

What Can Employers Learn from This? 

A couple of key points: 

  • Procedural fairness is integral – rushing it almost lost the case for the ACTU – this should include a show cause letter and opportunity to respond to the allegation (as well as the proposed breach) 
  • Social media policy needs to be in place but also may need some tightening especially if the organisation has very strong views on certain issues 
  • Out of work conduct can be investigated – Managers need education and training on this 
  • Strong personal views are fine but it does not give an unqualified right to publicly espouse views that are contrary to the interests and values of his employer 
  • The values of a company can be upheld and employees measured against this with their conduct – as long as they actually know about them – this may manifest in policies, training or/and codes of conduct. 

Written By : Jonathan Mamaril . Originally published on NB Lawyers here

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