In Clint Remmert v Broken Hill Operations Pty Ltd T/A Rasp Mine (2016), the Fair Work Commission (FWC) found a “relevant and sufficient connection” between a mine maintenance fitter’s out-of-work bullying and the employment relationship, after he was dismissed for belittling and ridiculing a supervisor online.
However, the worker was still held to have been unfairly dismissed due to the employer’s unclear social media policy and non-disclosure of all reasons for the dismissal.
A photo of another worker imitating a supervisor with an exaggerated peak on his hat had been posted on Facebook and the worker replied, writing “I’ve seen f***wits with bigger peaks on their hats” and “Next you’ll be running the denim pants with reflective tape”.
In the worker’s unfair dismissal claim, he submitted he did not name or intend any reference to the supervisor in his post and argued he was away from work when he posted the comment.
Despite this, the FWC found that there was a “relevant and sufficient connection” between the worker’s out-of-work conduct and his employment due to the fact that many of the worker’s Facebook ‘friends’ also worked for the employer and they were likely to recognise that the post related to the supervisor, because it included a photo and was made in the context of a regional community.
But the FWC also noted that the worker did not knowingly breach the employer’s social media policy and that the application of the employer’s code of conduct to Facebook posts outside of work was unclear in the absence of an understanding of the policy.
It was ultimately held that while the employer had a valid reason to dismiss the worker, the dismissal was still unfair because the employer failed to inform him of all the reasons leading to his dismissal. Specifically, the employer’s reliance on a confidential report that detailed a range of allegations against the employee.
The employer was ordered to pay the worker $28,471 in compensation.
Lessons for employers
Make sure you have a comprehensive social media policy which covers out-of-work conduct as part of your safety system.
This will assist you to educate and discipline your workers in relation to appropriate social media use, and to mitigate the risks associated with workplace bullying.
Also ensure that your dismissal process involves full disclosure to the worker of all the reasons for dismissal.