The Fair Work Commission has sided with a dismissed employee who wrote an offensive Facebook post. McDonald Murholme Senior Associate Trent Hancock speaks to SmartCompany about the procedural deficiencies and lack of social media policies that led to the decision.
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“Disgraceful”: Business owner speaks out after Fair Work sides with sacked worker who wrote offensive Facebook post
A business owner has slammed a Fair Work Commission decision that will see him pay $6,200 to a former employee who wrote an offensive Facebook post, labelling the ruling a “disgrace” and saying he would fight the Commission on the decision if he had the resources.
Tony Ottobre, managing director of lighting company LED Technologies, told SmartCompany he stands by his decision to fire a staff member via phone after the employee wrote a Facebook post asking an unnamed person “how much of the bosses c-ck did you suck?”.
The staff member took the company to the Fair Work Commission on the basis his dismissal was harsh and unjust, and the Commission agreed.
“If I had the money, I’d love to take the Commission to court. I think it’s a disgrace, that they expect me not to dismiss someone who’d wrote such language,” Ottobre said this morning.
According to the Fair Work Commission’s case report, in August 2016 Ottobre called the staff member to advise him over phone he had been fired, and told him to return all company property to the LED Technologies office.
The dismissal was a result of a Facebook post that the staff member had written directed an an unnamed individual, which read: “I don’t have time for people’s arrogance. And your [sic] not always right! your position is useless, you don’t do anything all day how much of the bosses c-ck did you suck to get were you are?”
The dismissed staff member said in evidence that the post related to a work conflict his mother was experiencing at her job, and it was meant to be in support of her, because it appeared another staff member was trying to remove her from her position. This business is unrelated to LED.
LED Technologies told the Commission its social media policy prevents staff members from using Facebook and other social media sites while at work, but the staff member argued he was on a break at the time the post was written, and had not been provided with the social media policy documents the company referred to.
When ruling on the case, Commissioner David Gregory said while the staff member’s Facebook post was “crude and immature”, it did not appear it was directed at anybody that worked for LED Technologies. The Commissioner also found that because the staff member was in a sales role that required him to travel, it was reasonable that the post could have been made while he was on break from work.
Finally, in deciding that the dismissal was harsh and unreasonable, Commissioner Gregory ruled the process through which the staff member was dismissed did not provide him “any real opportunity to provide an explanation or response to the reason” for his sacking.
LED Technologies has been ordered to pay $6,238 dollars to the staff member as compensation. Ottobre told SmartCompany “the fine is the best money I’ve spent this year”, because it has ended the conflict, and he can now get on with running his business with staff members he wants to work for him.
He says he still believes the Facebook post was about a staff member at his business, and not the dismissed workers’ mother.
“We will also be taking much more care in hiring people now, including checking people on Facebook, not just their resumes,” Ottobre says.
“The Commissioner obviously felt my decision to sack him on the spot was incorrect,” he says.
However, Ottobre says that in his 15 to 20 years of hiring employees, he has never been brought to the Fair Work Commission before, and given the language used in the Facebook post, he would make the same call again.
“Would I change it? No,” he says.
Businesses should be vigilant on “procedural deficiencies”
Trent Hancock, a senior associate at law firm McDonald Murholme, he believes this case came down to the perceived procedural deficiencies around the dismissal, rather than the social media policies of the company involved.
“The fact that the Facebook post was found to not have related [to the business] is the most important consideration,” Hancock tells SmartCompany.
“But there were procedural issues here. I would say there are three things: the fact that the commission accepted the post wasn’t related to the company; that the commission accepted [the staff member] was on a break; and the procedural side of things,” he says.
While dismissing an employee over the phone can be acceptable if an employer cannot see a staff member face-to-face, Hancock says it’s always worth ensuring that an employee is notified of the reasons for termination first, and given a chance to respond — even if this means delivering those reasons to their home if you cannot reach them, he says.
“Termination by phone is never a good start, but it’s not absolutely essential to have it face-to-face. The employer would want to make sure that the reasons were [given],” he says.
SmartCompany was unable to contact the dismissed employee prior to publication.
Reference: “’Disgraceful’: Business owner speaks out after Fair Work sides with sacked worker who wrote offensive Facebook post”, Smart Company, 10th April 2017.