Unfair dismissal and social media

Employers need to be cautious before dismissing an employee for posting offensive or vulgar material on social media.

The legal issues are whether

(a) the employer has and has properly published and enforced an adequate social media policy which deals with the particular conduct;

(b) the conduct alleged and proven constitutes a breach of the policy;

(c) there is a sufficient nexus with the employment or the workplace; and

(d) the punishment fits the crime.

Here is a recent case. A salesman dismissed after publishing an “offensive and vulgar” Facebook post during work hours has won an unfair dismissal case and been awarded more than $6,000 in compensation.

The applicant a Mr Somogyi posted “I don’t have time for people’s arrogance. And your not always right! your position is useless, you don’t do anything all day how much of the bosses c— did you suck to get were you are?”

After being sacked, Mr Somogyi took down the post and replaced it with another that read:

“Let’s Reword my last status so there is no miss-understanding…

“My Poor mum;

“Her arrogant boss is bullying her and miss treating her everyday at work he is trying to push her out of the company, because there is a new girl and she is sucking/f—ing the boss. this new girl has got into my mums position by being a whore. She comes home most nights upset and a few night she is crying her eyes out.

“She needs to speak to someone or fair work i think but she won’t listen to me.

“I am sick of pathetic people’s arrogance and all the bullshit that people do to others for no reason.”

Commissioner Gregory of the Fair Work Commission accepted Mr Somogyi’s explanation and found in his favour, saying

“While it is difficult to see how such a crude and offensive post could ever assist in achieving this objective this explanation about why it was posted appears to be the only plausible explanation that exists,” Commissioner Gregory said.

“The concerns about the robust language in the post are also tempered by the fact that similar language appears to have been used in the workplace at various times”.

 

Somogyi v LED Technologies Pty Ltd (2017) FWC 1966 delivered 6 April per Gregory C