Fair Work regulations and serious misconduct

The following dicta is drawn from an appeal in the Fair Work Commission from a decision upholding the validity of an employee’s dismissal on the ground of serious misconduct arising from “out of hours” conduct with the publication of private Facebook posts by the employee about the employer. The passage below constitutes in my view authority for the legal proposition that the publication of material on the internet can breach an employee’s polices if it is damages the reputation of the employer and further that the conduct can be categorized as “serios misconduct” under the Fair Work Regilations.

“Conclusion of s.387(a)

[18] In assessing whether there was a valid reason for dismissal, the Deputy considered the gravity of the conduct in the context in which the Facebook posts were made. Specifically, that the Respondent placed critical reliance on their reputation and is active in publicly advocating for social issues, and this context was understood by the Appellant.

[19] In applying the principles of Rose v Telstra to the Appellant’s conduct, the Deputy President was satisfied that the conduct was likely to cause serious damage to the relationship between the Respondent and the Appellant and that the conduct was incompatible with the employee’s duty to the Respondent.

[20] The Deputy President was satisfied that the conduct constituted serious misconduct as the Appellant breached policies that he was bound to comply with under his contract of employment. He was also satisfied that the Appellant’s conduct satisfied the definition of Serious Misconduct found under Fair Work Regulations 2009 reg 1.07, as the conduct was wilful and deliberate behaviour that was inconsistent with the continuation of the contract of employment. Further it was conduct that caused a serious and imminent risk to the Respondent’s reputation.

[21] In conclusion, the Deputy President found that the Appellant’s conduct established a valid reason for his dismissal and that this weighed in favour of a finding that the dismissal was not unfair.”

Corry v Australian Council of Trade Unions T/A ACTU – [2022] FWCFB 126 – 7 July 2022 – Catanzariti VP, Easton DP and Bissett C