1
[Note: refer to the Federal Court decision dated 13 December 2013
[2013] FCA 157 for result of appeal.]
[2012] FWAFB 7097
DECISION
Fair Work Act 2009
s.604—Appeal of decision
Linfox Australia Pty Ltd
v
Glen Stutsel
(C2011/6952)
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT
SENIOR DEPUTY PRESIDENT HARRISON
COMMISSIONER DEEGAN
SYDNEY, 3 OCTOBER 2012
Appeal against decision - unfair dismissal - serious misconduct - social media - Facebook -
reinstatement - order to restore lost pay.
[1] This is an appeal, for which permission is sought, by Linfox Australia Pty Ltd (the
Company) pursuant to s.604 of the Fair Work Act 2009 (the Act), against a decision given by
Commissioner Roberts on 19 December 2011.1 In the decision, the Commissioner found that
Mr Glen Stutsel (the Applicant) had been unfairly dismissed by the Company, and ordered
that he be reinstated in his employment and compensated for part of his lost wages.2
[2] The background to the appeal may be set out briefly as follows:
The Applicant was employed by the Company as a truck driver between April 1989
and the termination of his employment on 31 May 2011. At the time of the
termination, he was employed on the Coles delivery contract working out of the
Coles National Distribution Centre (NDC) at Eastern Creek.
The Applicant’s employment was terminated for serious misconduct following the
posting of comments about two of his managers on his Facebook profile page.
The comments posted on the Applicant’s Facebook page regarding the managers
were offensive, derogatory and discriminatory, and included suggestions of
dishonest and underhanded conduct, and comments of sexual misconduct.
One of the managers named in the comments viewed the Applicant’s Facebook page
after being prompted by the site to wish happy birthday to a third party and noticing
that the Applicant had also left a birthday greeting. When she noticed one offensive
1 [2011] FWA 8444.
2 PR517532.
AUSTRALIA FAIR WORK AUSTRALIA
http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2013/2013fcafc0157
[2012] FWAFB 7097
2
comment that referred to herself and another manager, she looked more closely at
the Applicant’s page.
The manager made a complaint to the Company and notified the other manager to
whom the comments referred, who also made a complaint. The Company’s Group
Manager for Workplace Relations conducted an investigation, in the course of which
she spoke to both managers and interviewed the Applicant in the presence of his
manager and an official of the Transport Workers’ Union of Australia (TWU).
The Group Manager for Workplace Relations concluded that the Applicant’s
conduct on Facebook amounted to sexual and racial discrimination, which breached
Company policies relating to equal opportunity and diversity. She recommended that
the Company consider terminating the Applicant’s employment.
The Applicant’s employment was terminated by a letter dated 31 May 2011. Though
he was terminated for serious misconduct, in light of his length of service he was
paid out his notice period.
The decision at first instance
[3] The application before the Commissioner was made pursuant to s.394 of the Act and
sought a remedy for unfair dismissal.
[4] Section 385 sets out when a person has been unfairly dismissed. It requires Fair Work
Australia (FWA) to be satisfied inter alia that the dismissal was “harsh, unjust or
unreasonable”.3 The criteria for determining whether a dismissal is harsh, unjust or
unreasonable are set out in s.387 as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA
must take into account:
(a) whether there was a valid reason for the dismissal related to the person's
capacity or conduct (including its effect on the safety and welfare of other employees);
and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related
to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a
support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person--whether
the person had been warned about that unsatisfactory performance before the
dismissal; and
3 s.385(b).
[2012] FWAFB 7097
3
(f) the degree to which the size of the employer's enterprise would be likely to
impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management
specialists or expertise in the enterprise would be likely to impact on the procedures
followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.”
[5] In his decision, the Commissioner provides a detailed summary of the evidence given
in the proceedings by the witnesses called by the Applicant (Mr K Hurst, TWU official, and
himself) and by the Company (Ms G Neill, Group Manager Workplace Relations, Mr M
Assaf, Transport Manager, and Ms N Russell, NSW Resource and Planning Manager). The
Commissioner then summarises the written and oral submissions presented by the parties.
[6] In considering the evidence and submissions, the Commissioner noted that the
Applicant’s employment was terminated for serious misconduct, on the basis of comments
which appeared on his personal Facebook page. The Commissioner indicated that he would
confine himself to the three specific allegations made against the Applicant in the termination
letter. The letter summarises the reasons for the dismissal as follows:
“1. on your Facebook profile page, which was open to the public, you made a
number of statements about one of your managers, Mick Assaf, that amounted
to racially derogatory remarks;
2. on your Facebook profile page, which was open to the public, you made a
statement about one of your managers, Ms Nina Russell, which amounted to
sexual discrimination and harassment; and
3. you made extremely derogatory comments about your managers, Mr Assaf and
Ms Russell.”
[7] The Commissioner noted that there was no contest that the material upon which the
Company based its decision to terminate the Applicant’s employment appeared on his
Facebook page and was contained in a series of conversations between the Applicant and
others. The Facebook account had some 170 other persons with the status of “friends”, many
of whom are employees of the Company.
[8] The Commissioner accepted the Applicant’s evidence that his Facebook page was set
up by his wife and daughter, and that he believed that it had been set up with the highest
available privacy settings. The Commissioner also accepted the Applicant’s evidence that he
believed that comments posted on his Facebook page could only be viewed by his Facebook
friends, and that he was unaware that he could delete comments that other people posted on
the page.4
[9] As the Applicant’s conduct was the reason given by the Company for the dismissal,
the Commissioner considered whether the conduct amounted to a valid reason for dismissal
(s.387(a)). In so doing the Commissioner examined each of the Facebook comments relied
4 [2011] FWA 8444 at [78].
[2012] FWAFB 7097
4
upon to support the allegation of serious misconduct. He made a number of findings on the
evidence:
The comments about terrorism and the death of a Muslim terrorist were an
expression of the Applicant’s private views in a forum that was not intended to be
public. Although the comments were distasteful, they were within the Applicant’s
right to free speech and could not be characterised as a personal attack on one of his
managers, who is a practising Muslim.5
Another remark that referred to his manager as a “bacon hater” was in poor taste, but
was not racially derogatory and was not intended to be hurtful.6
When the Facebook comments were read in sequence and as a whole, the series of
conversations have very much the flavour of “a group of friends letting off steam
and trying to outdo one another in being outrageous” and of “a conversation in a pub
or cafe, although conducted in an electronic format”.7
Some of the Facebook conversations related to the Applicant’s activities as a TWU
delegate, and in that context it was not surprising or unusual that some of the
material about Linfox managers was uncomplimentary.8
The comments of a sexual nature posted about a female manager were outrageous,
but most of the comments were not made by the Applicant. They were made by
others in the course of comments in a conversation on Facebook. The Applicant did
not realise that he could delete comments that others posted on his Facebook page.9
The comment made by the Applicant about which that manager initially complained
might have been “disgusting”, but was clearly an attempt at humour and did not
contain any credible threat to the manager’s wellbeing.10
The Company did not have a policy on the use of social media by employees. In an
era in which many companies have detailed social media policies, the parts of the
induction training material and handbook upon which the Company relied were not
adequate to ground the action taken against the Applicant.11
[10] Based on these evidential findings, the Commissioner concluded that:
“[88] All in all, I find that Mr Stutsel was not guilty of serious misconduct relating to
the matters set out in the termination of employment letter. I further find that there was
not a valid reason for the termination of his employment, based on the reasoning set
out above.”
5 ibid at [79].
6 ibid at [80].
7 ibid at [81].
8 ibid at [82].
9 ibid at [83].
10 ibid at [84].
11 ibid at [87].
[2012] FWAFB 7097
5
[11] The Commissioner then considered the other criteria set out in s.387 of the Act in
deciding whether the Applicant’s dismissal was harsh, unjust or unreasonable. In this regard,
the Commissioner noted the differential treatment of the Applicant as compared with other
employees who had made offensive comments on the Applicant’s Facebook page, against
whom no action was taken. The Commissioner also took into account the Applicant’s
employment record, age, and job prospects (see s.387(h)).12 The Commissioner rejected the
submission that the termination of the Applicant’s employment was procedurally unfair
(s.387(b)-(d)).13 Overall the Commissioner found that the dismissal was harsh, unjust and
unreasonable.14
[12] In considering the appropriate remedy to be ordered, the Commissioner had regard to
ss.390 and 391 of the Act. Section 390 sets out the circumstances in which FWA can order
certain remedies for unfair dismissal. Section 390(3)(a) requires that FWA not make an order
for compensation unless it is satisfied that reinstatement of the person is inappropriate.
Section 391 deals with reinstatement. It provides that:
“391 Remedy--reinstatement etc.
(1) An order for a person's reinstatement must be an order that the person's
employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed
immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less
favourable than those on which the person was employed immediately before
the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the
dismissal is no longer a position with the person's employer at the time of the
dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity
of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed
immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less
favourable than those on which the person was employed immediately before
the dismissal.
Order to maintain continuity
12 ibid at [93]-[94].
13 ibid at [91].
14 ibid at [96].
[2012] FWAFB 7097
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(2) If FWA makes an order under subsection (1) and considers it appropriate to do so,
FWA may also make any order that FWA considers appropriate to maintain the
following:
(a) the continuity of the person's employment;
(b) the period of the person's continuous service with the employer, or (if
subsection (1A) applies) the associated entity.
Order to restore lost pay
(3) If FWA makes an order under subsection (1) and considers it appropriate to do so,
FWA may also make any order that FWA considers appropriate to cause the employer
to pay to the person an amount for the remuneration lost, or likely to have been lost,
by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), FWA
must take into account:
(a) the amount of any remuneration earned by the person from employment or
other work during the period between the dismissal and the making of the
order for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the
person during the period between the making of the order for reinstatement
and the actual reinstatement.”
[13] The Commissioner made the following findings as to the remedy to be ordered:
“[98] In all the circumstances of this case, reinstatement is in my view both
practicable and desirable. Mr Stutsel seeks reinstatement and I find that reinstatement
is an appropriate remedy. My assessment of Mr Stutsel and his conduct is that he is
quite capable of resuming his duties at NDC. He has shown no rancour towards
Management and I believe that the employee/employer relationship can be re-
established provided that there is goodwill on both sides. I have no doubt in this
context that Mr Stutsel is fully aware of the comments on his Facebook page were
foolish and he regrets the entire situation. Mr Assaf is now based in Bangkok and there
is nothing before me which would indicate that Mr Stutsel and Ms Russell are likely to
come into contact with each other to any degree.
...
[101] Mr Stutsel did not actively pursue a claim for compensation for lost wages
following the termination of his employment. However, in all the circumstances of this
case, I find that an order for compensation is required to achieve a just outcome for Mr
Stutsel. However, I do not believe Mr Stutsel should be compensated for the entire
period following his dismissal on 31 May 2011. Accordingly, I find that Mr Stutsel
should be compensated for lost wages at his ordinary rate, as applicable at the time he
was dismissed, on and from 1 July 2011 until the date of his reinstatement. The
amount comprising compensation for lost wages shall have deducted from it the
amount of any remuneration earned by Mr Stutsel from employment or other work
during the period between dismissal and the making of my order for reinstatement and
[2012] FWAFB 7097
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any amount of other remuneration earned by him during the period between the
making of my order for reinstatement and the actual reinstatement.”
The appeal
[14] In the appeal, the Company submitted that the Commissioner erred in several respects
both in deciding that the Applicant’s dismissal was unfair, and in making the orders for
reinstatement and compensation. The Company submitted that in deciding that the dismissal
was unfair, the Commissioner relied on irrelevant considerations as mitigating the Applicant’s
culpability, gave no or insufficient consideration to relevant facts, placed undue emphasis on a
purported right to free speech, and made errors of fact.
[15] In ordering the reinstatement of the Applicant, the Company submitted that the
Commissioner failed to take into account material considerations and did not give adequate
reasons for his finding that reinstatement was an appropriate remedy. In ordering that the
Applicant be partially compensated for lost pay, the Company submitted that the
Commissioner failed to take into account that the Applicant had been paid for his notice
period and thus delivered the Applicant a “windfall” amount.
Appeal principles
[16] An appeal under s.604 of the Act involves an appeal by way of rehearing, with the
powers of the Full Bench being exercisable only if there is error on the part of the primary
decision-maker: see Coal and Allied Operations Pty Ltd v Australian Industrial Relations
Commission.15 The majority of the High Court in that case explained in the following passage
how error may be identified where a discretionary decision is involved:
“Because a decision-maker charged with the making of a discretionary decision has
some latitude as to the decision to be made, the correctness of the decision can only be
challenged by showing error in the decision-making process (See Norbis v Norbis
(1986) 161 CLR 513 at 518-519). And unless the relevant statute directs otherwise, it
is only if there is error in that process that a discretionary decision can be set aside by
an appellate tribunal. The errors that might be made in the decision-making process
were identified, in relation to judicial discretions, in House v The King in these terms:
‘If the judge acts upon a wrong principle, if he allows extraneous or irrelevant
matters to guide or affect him, if he mistakes the facts, if he does not take into
account some material consideration, then his determination should be
reviewed and the appellate court may exercise its own discretion in substitution
for his if it has the materials for doing so’ (55 CLR 499 at 505).”
[17] An appeal under s.604 of the Act may only be pursued with the permission of FWA.
This would normally require an appellant to demonstrate an arguable case of appealable error
and to refer to other considerations which would justify the granting of permission to appeal.
Although s.604(2) requires FWA to grant permission to appeal if it is satisfied that it is in the
public interest to do so, there is a note following the subsection to the effect that this does not
15 (2000) 203 CLR 194 at 205.
[2012] FWAFB 7097
8
apply in relation to an application to appeal from an unfair dismissal decision (see s.400). The
effect of s.400 of the Act is that the general approach to dealing with appeals is varied in two
significant ways in relation to appeals from unfair dismissal decisions. Firstly, in regard to the
granting of permission to appeal, this may only be granted where FWA considers it is in the
public interest to do so (s.400(1)). Secondly, where an appeal is based on error of fact, the
appeal can only be made on the ground that the decision involved a significant error of fact
(s.400(2)).
Consideration of the issues
[18] The main issues raised in the appeal relate to:
Whether there was a valid reason for the termination of the Applicant’s employment;
Whether the termination was harsh, unjust or unreasonable; and
Whether the remedies ordered by the Commissioner were appropriate.
[19] The Company submitted that significant errors of fact and law were made by the
Commissioner in the determination of these issues. This warranted the Full Bench granting
permission to appeal and setting aside the orders made by the Commissioner. It was also
submitted that permission to appeal should be granted because the intersection of social
networking sites and employment obligations directly arises for consideration in the appeal. It
was said that there is a very real public interest in having the extent to which an employee’s
asserted right to freedom of speech can be called in aid when social networking sites have
been used to vilify fellow employees.
[20] It was submitted by the Applicant that permission to appeal should be refused because
the Company has not properly attempted to demonstrate appealable error but has simply
sought to have the Full Bench re-decide the case for itself, based to a large degree on
submissions that were never made to the Commissioner. However it was acknowledged by
the Applicant in his submissions that the use of social media by employees is a contentious,
complex and novel issue and it is not surprising that employees have little understanding of
permissible conduct in this area.
[21] In the circumstances of this matter, and having regard to the issues raised about the use
of social networking sites, we have decided to grant permission to appeal. We now turn to
deal with the main issues in the appeal.
(i) Valid reason for termination
[22] The Company submitted that the Commissioner’s finding that the Applicant was not
guilty of serious misconduct was not open on the evidence before him. It was said that the
Applicant had engaged in serious misconduct by his use of the social networking site,
Facebook, to denigrate fellow employees. The conduct included posting vile comments which
were threatening, offensive, insulting, sexist and racist. These postings were in the public
domain and could be viewed by a wide audience, despite what might have been thought by
the Applicant about the privacy settings on his Facebook page.
[2012] FWAFB 7097
9
[23] In the course of the proceedings, we were taken to decisions of Employment Tribunals
in other jurisdictions relating to social networking sites.16 We were also taken to the following
description of Facebook given by Brown J in the Ontario Supreme Court of Justice:
“[17] The general evidence described Facebook as a “social website” or, as put by its
Terms of Use, “a social utility that connects you with the people around you”...
[18] The site is available for the personal, non-commercial use of its users. Content
which users may post on Facebook includes photos, profiles (name, image, likeness),
messages, notes, text, information, music, video, advertisements, listing and other
content. The sites’ “Facebook Principles” indicates that a user may “set up your
personal profile, form relationships, send messages, perform searches and queries,
form groups, set up events, add applications, and transmit information through various
channels.”
[19] When a person registers with Facebook, he creates his own profile and privacy
settings. Profile information is displayed to people in the networks specified by the
user in his privacy settings – e.g. a user may choose to make his private profile
information available to others within his school, geographic area, employment
network, or to “friends” of “friends”. A user can set privacy options that limit access
to his profile only to those to whom he grants permission – the so-called “friends” of
the user.
...
[31] ... From the general evidence about Facebook filed on this motion it is clear
that Facebook is not used as a means by which account holders carry on monologues
with themselves; it is a device by which users share with others information about who
they are, what they like, what they do, and where they go, in varying degrees of detail.
Facebook profiles are not designed to function as diaries; they enable users to
construct personal networks or communities of “friends” with whom they can share
information about themselves, and on which “friends” can post information about the
user.”17
[24] The conduct that led to the termination of the Applicant’s employment consisted of the
posting on his Facebook page of offensive, derogatory and discriminatory comments and
statements about two of his managers. As set out earlier, the Commissioner examined the
evidence as to the various postings on the Facebook page and made findings in relation to
them. The Commissioner referred to some of the comments made by the Applicant as being
“distasteful”, “uncomplimentary” and “disgusting” and noted that the Applicant had later
come to regret making the comments. The comments of a sexual nature on the Facebook page
were “outrageous”, however the Commissioner noted that these comments were not made by
the Applicant but by one of his Facebook “friends” in the course of a conversation.
[25] The posting of derogatory, offensive and discriminatory statements or comments about
managers or other employees on Facebook might provide a valid reason for termination of
16 Crisp v Apple Retail (UK) Ltd (United Kingdom Employment Tribunal, Case Number 1500258/2011, 5 August 2011);
Preece v JD Wetherspoons Plc (United Kingdom Employment Tribunal, Case Number 2104806/10, 18 January 2011).
17 Leduc v Roman (2009) 308 DLR (4th) 353, (2009) 73 CPC (6th) 323, [2009] Can LII 6838.
[2012] FWAFB 7097
10
employment. In each case, the enquiry will be as to the nature of the comments and
statements made and the width of their publication. Comments made directly to managers and
other employees and given wide circulation in the workplace will be treated more seriously
than if such comments are shared privately by a few workmates in a social setting. In ordinary
discourse there is much discussion about what happens in our work lives and the people
involved. In this regard we are mindful of the need not to impose unrealistic standards of
behaviour and discourse about such matters or to ignore the realities of workplaces.
[26] In the present case, the series of Facebook conversations in which the comments were
made were described by the Commissioner as having the flavour of a conversation in a pub or
cafe, although conducted in electronic form. We do not agree altogether with this
characterisation of the comments. The fact that the conversations were conducted in electronic
form and on Facebook gave the comments a different characteristic and a potentially wider
circulation than a pub discussion. Even if the comments were only accessible by the 170
Facebook “friends” of the Applicant, this was a wide audience and one which included
employees of the Company. Further the nature of Facebook (and other such electronic
communication on the internet) means that the comments might easily be forwarded on to
others, widening the audience for their publication. Unlike conversations in a pub or cafe, the
Facebook conversations leave a permanent written record of statements and comments made
by the participants, which can be read at any time into the future until they are taken down by
the page owner. Employees should therefore exercise considerable care in using social
networking sites in making comments or conducting conversations about their managers and
fellow employees.
[27] In the present matter the Commissioner considered that the statements and comments
made by the Applicant were distasteful. However when viewed in the context of the Facebook
conversations he considered that they were not of such a nature as to warrant dismissal for
serious misconduct, or even as to constitute a valid reason for termination.18 Some of the
comments were so exaggerated or stupid as not to amount to any credible threat against the
managers. Other comments were not of such a serious nature as was contended by the
Company in the proceedings before the Commissioner and on appeal. Furthermore, some of
the comments were not made by the Applicant but by one of his Facebook friends.
[28] We have carefully considered the evidence and material before the Commissioner and
the submissions on appeal. We consider that the conclusion reached by the Commissioner was
reasonably open to him in the circumstances of the case and having regard to the context in
which the conduct occurred and an overall assessment of the gravity of the conduct. It has not
been shown that the Commissioner made any error of the kind referred to in House v The
King in the determination of this part of the matter. Indeed, as submitted by counsel for the
Applicant, the appeal was pursued by the Company more on the basis of seeking a different
outcome from the appeal bench, based on overstated concerns as to the nature and effect of
the postings on the Applicant’s Facebook page, than by seeking to demonstrate appealable
error in the decision-making process at first instance.
[29] Even if it was to be found that there was a valid reason for the termination of the
Applicant’s employment, there are other factors to be considered in making a determination
as to whether the termination was harsh, unjust or unreasonable. We now turn to these.
18 [2011] FWA 8444 at [88].
[2012] FWAFB 7097
11
(ii) Was the termination “harsh, unjust or unreasonable”?
[30] The Commissioner considered the criteria set out in s.387 of the Act in reaching a
conclusion as to whether the dismissal was harsh, unjust or unreasonable.
[31] The Commissioner found that the dismissal was not procedurally unfair, as the
Applicant was notified of the reasons, given an opportunity to respond and allowed to have a
support person to assist him at the disciplinary hearing (s.387(b), (c) and (d)). Further the
Company was a large operation with access to advice in industrial relations matters (s.387(e)).
[32] The Commissioner took into account a range of “other matters” (see s.387(h)) in
concluding that the dismissal was harsh, unjust and unreasonable. These included the
differential treatment by the Company of the other employees who made comments on the
Applicant’s Facebook page. In this regard the Commissioner noted that none of the other
employees who made offensive comments on the Facebook page were the subject of any
sanction by the Company.19 The Commissioner also took into account the Applicant’s
“extremely good employment record over some 22 years, his age and his employment
prospects”.20
[33] In our view, the abovementioned and other considerations referred to by the
Commissioner in his decision provided an appropriate basis for concluding that the dismissal
was harsh, unjust or unreasonable. This would be so even if it was found that the postings on
the Applicant’s Facebook page provided a valid reason for dismissal. In particular, we
consider that the following matters support this conclusion:
(a) The long period of the Applicant’s satisfactory employment with the
Company, his age and his employment prospects;
(b) The circumstances in relation to the publication of the offensive comments,
and, particularly, the belief by the Applicant that his Facebook page was on maximum
privacy settings and that the comments posted on his page could only be viewed by
himself and his Facebook friends, and the finding that the comments were never
intended to be communicated to the managers concerned;
(c) The conduct complained about occurred outside of the workplace and outside
of working hours;
(d) Some of the statements complained about on the Facebook page were not
made by the Applicant, but by other persons, and the Applicant did not know that he
could delete comments from his Facebook friends once they had been posted;
(e) The Company did not take action against other employees who took part in the
relevant Facebook conversations; and
(f) The Commissioner’s finding that the Applicant was “fully aware of the
comments on his Facebook page were foolish and he regrets the entire situation”.21
19 ibid at [92]-[93].
20 ibid at [94].
21 ibid at [98].
[2012] FWAFB 7097
12
[34] It is apparent from the recital of these matters that the findings of the Commissioner as
to the Applicant’s understanding about the use of Facebook were an important part of the
circumstances taken into account in concluding that the dismissal was unfair. It is also
apparent that, with increased use and understanding about Facebook in the community and the
adoption by more employers of social networking policies, some of these factors may be
given less weight in future cases. The claim of ignorance on the part of an older worker, who
has enthusiastically embraced the new social networking media but without fully
understanding the implications of its use, might be viewed differently in the future. However
in the present case the Commissioner accepted the Applicant’s evidence as to his limited
understanding about Facebook communications. We have not been persuaded, having regard
to the evidence and submissions presented, that such a finding was not reasonably open.
[35] The postings on his Facebook page by the Applicant and others were appropriately a
matter for concern and censure. The comments were childish and objectionable, and reflect
poorly on those who participated in the conversations complained about. However, when the
statements and comments posted on the Facebook page were objectively considered in their
proper context they were not of such a serious or extreme nature as would justify dismissal for
serious misconduct. Further there were other considerations which, when taken into account
in the circumstances of the matter before the Commissioner, led to the conclusion that the
dismissal of the Applicant on the basis of serious misconduct was unfair.
[36] Overall, we are not persuaded that there were errors of fact or law in the
Commissioner’s determination that the Applicant had been unfairly dismissed. Although the
conduct of the Applicant in posting derogatory and offensive remarks about two of his
managers on his Facebook page was inappropriate, there were a range of other considerations
in the present matter which meant that the termination of his employment was unfair.
(iii) Was the remedy appropriate?
[37] The Commissioner decided that the Applicant should be reinstated and be provided
with part compensation for lost wages.
[38] In the appeal, the Company submitted that the Commissioner erred in his
consideration as to the appropriateness of reinstatement. This was because the Commissioner
failed to grasp the seriousness of the Applicant’s misconduct and to consider the impact of
reinstatement for the Company.
[39] We have already dealt with the issues relating to the seriousness of the Applicant’s
conduct. It has not been shown that the Commissioner did not give appropriate weight to what
he considered to be the seriousness of the Applicant’s conduct in his consideration of the
appropriateness of reinstatement.
[40] Further we note that the Commissioner did take into consideration the impact of
reinstatement on the Company. The Commissioner noted that one of the managers was now
working overseas, and that it was unlikely that the other manager and the Applicant would
come into contact with each other to any degree. It has not been shown that these findings
were incorrect. In any event, in light of the Commissioner’s finding that the Applicant has
shown no rancour towards management and recognises the foolishness of his conduct, there
might be little basis for concern if any such contact with the manager did occur.
[2012] FWAFB 7097
13
[41] It was also submitted by the Company that the Applicant’s failure to provide truthful
answers during the investigation process meant that the Company had no trust or confidence
in him. It was said that this should have been considered by the Commissioner in his reasons
as to whether reinstatement was appropriate. In this regard, we note that what was submitted
to the Commissioner was that the Applicant was first asked by the Group Manager for
Workplace Relations, in a general way, about Facebook comments made some six months
earlier, and he denied making them. However when he was shown printouts of the specific
statements, he conceded he made them.22 We do not consider that this conduct demonstrated
such a breakdown in the relationship between employer and employee as to make
reinstatement not possible. The decision reached by the Commissioner on reinstatement
cannot be challenged on the basis that he failed to make specific mention in his reasons of an
argument of limited significance. The Commissioner considered a range of matters in
determining that reinstatement was both practicable and desirable in the circumstances of the
case. He clearly did not consider that there had been any such conduct on the part of the
Applicant which was so destructive of the employment relationship as to make reinstatement
inappropriate.
[42] It was also submitted by the Company that the Commissioner should not have ordered
that the Applicant be compensated for lost wages in circumstances where no such claim was
being pressed on his behalf. However it was open to the Commissioner pursuant to s.591(3) to
make such an order where he considered it necessary “to achieve a just outcome” for the
Applicant.23 In relation to the order made and the appropriate calculation of the payment for
“lost wages”, we accept the contention of the Applicant in the appeal proceedings that wages
paid to the Applicant in lieu of notice upon termination were not “lost wages” and
consequently are not covered by the order made by the Commissioner.
Conclusion
[43] For the above reasons, we have decided to dismiss the appeal. It has not been shown
that there is any error of such significance in the Commissioner’s decision as would warrant
interference by an appeal bench. The Commissioner had to consider whether the posting of
inappropriate comments about managers on Facebook was a valid reason for the dismissal of
an employee. In the somewhat special circumstances of the present matter, and having regard
in particular to the nature of the comments made, the limited understanding of the employee
as to the privacy of Facebook communications and the employee’s long and satisfactory
employment record, the Commissioner decided that the dismissal was harsh, unjust or
unreasonable and ordered reinstatement and payment of lost wages. Having regard to the
evidence and submissions before him, and having considered all that has been put in the
appeal proceedings, we consider that the decision was reasonably open to the Commissioner
and is not attended with any error of the kind referred to in House v The King.
SENIOR DEPUTY PRESIDENT
22 Transcript, 5 October 2011, PN2076-2082.
23 [2011] FWA 8444 at [101].
[2012] FWAFB 7097
14
Appearances:
A Moses Senior Counsel and J Murphy of counsel for Linfox Australia Pty Ltd.
A Hatcher Senior Counsel and T Warnes and O Fagir of the TWU for Glen Stutsel.
Hearing details:
2011.
Sydney:
December 22 (hearing on stay).
2012.
Sydney:
March 22, May 31.
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