21 November 2014

Third time unlucky for Linfox: Facebook dismissal still unfair

The Federal Court has dismissed an application for judicial review of an October 2012 decision of a Full Bench of Fair Work Australia (FWA) (as it then was). The Full Bench decision had upheld Commissioner Roberts’ initial decision that the dismissal of an employee who posted inappropriate content about his employer on his Facebook page was unfair.

Implications for employers

Unfair dismissal decisions in FWC will turn on the specific evidence presented. Once that evidence is before the FWC and has been given proper consideration, there is a limited scope for review on appeal. Accordingly, it is critical to ensure that the original decision to terminate is soundly based and that the employer presents comprehensive evidence in the initial hearing.

On the specific issue of an employee’s private use of social media, it is important for an employer to ensure that a reasonable policy on the subject is in place and that any disciplinary action is in accordance with the policy.

Background: relevant law

Under the Fair Work Act 2009 (Cth) (FW Act), an eligible employee may bring a claim in the FWC if he or she believes he or she has been unfairly – that is, harshly, unjustly or unreasonably – dismissed.

Background: facts

Mr Glen Stutsel (Mr Stutsel) had worked as a truck driver for Linfox Australia Pty Ltd (Linfox) since April 1989. Between February 2011 and May 2011, Mr Stutsel posted a number of comments on his Facebook page about Linfox, and particularly in respect of two of his managers, Mr Michael Assaf (Mr Assaf) and Ms Nina Russell (Ms Russell).

A number of Mr Stutsel’s Facebook “friends” posted comments on these posts, which were not removed. The privacy settings on Mr Stutsel’s Facebook page were not strict, so that any person with an account could view the information in his page. Accordingly, although Mr Stutsel and Ms Russell were not Facebook “friends”, she was nonetheless able to view the comments on his page. In doing so, Ms Russell discovered comments which she found offensive.

Ms Russell complained to the Linfox Group Manager Workplace Relations, Ms Gaylynne Neill (Ms Neill). On 20 May 2011, Ms Neill interviewed Mr Stutsel and on 31 May 2011, Linfox terminated his employment for serious misconduct because he had:

  • On his Facebook profile page, which was open to the public, made a number of statements about Mr Assaf which were racially derogatory
  • On his Facebook profile page, which was open to the public, made a statement about Ms Russell which amounted to sexual discrimination and harassment
  • Made extremely derogatory comments about his managers, Mr Assaf and Ms Russell

Mr Stutsel applied to FWA seeking a remedy for unfair dismissal.

Decision of FWA at first instance

On 19 December 2011, Commissioner Roberts concluded held that the dismissal had been unfair and ordered reinstatement.

In reaching this decision, Commissioner Roberts noted that there was no contest that the relevant material appeared on Mr Stutsel’s Facebook page. However, it was accepted that:

  • The page was set up by Mr Stutsel’s wife and Mr Stutsel understood the privacy settings to be the highest available
  • Mr Stutsel believed that his page could only be seen by his Facebook “friends”
  • Mr Stutsel was unaware that he could delete comments posted by other people on his page.

Concluding that Mr Stutsel was not guilty of serious misconduct, Commissioner Roberts found that:

  • Mr Stutsel’s comments about terrorism and the death of Osama bin Laden were an expression of his private views, which were not intended to be public. Mr Stutsel had a right to free speech and the comments could not be categorised as a personal attack on Mr Assaf

  • Mr Stutsel’s reference to Mr Assaf as a “bacon hater” was not racially derogatory or intended to be hurtful

  • Mr Stutsel’s comments had a flavour of a conversation letting off steam in a café or pub, and, as some of the conversations concerned Mr Stutsel’s activities as a union delegate, it was not surprising that some of the comments towards the managers were uncomplimentary

  • The comments of a sexual nature regarding Ms Russell were, although outrageous, mostly made by other comments rather than Mr Stutsel, and the ones which triggered her complaint were an attempt at humour with no credible threat to her wellbeing

  • Linfox did not have a policy on the use of social media by employees.

He also noted Mr Stutsel’s long history of prior unblemished service.

Commissioner Roberts concluded that Mr Stutsel’s dismissal was harsh, unjust and unreasonable and ordered reinstatement on the basis that it was practicable, desirable and appropriate. He ordered that Mr Stutsel be compensated for lost wages for part of the period following his dismissal.

Linfox sought, and was granted, leave to appeal to the Full Bench of FWA.

Decision of the Full Bench of FWA

In October 2012, a Full Bench (comprised of Senior Deputy Presidents Boulton and Harrison and Commissioner Deegan) dismissed Linfox’s appeal.

The Full Bench found that, after carefully considering the evidence and submissions in determining whether there was a valid reason for the dismissal:

Commissioner Roberts’ decision on that there was no such reason was open to make, so that there was no appealable error; and

the considerations taken into account by Commissioner Roberts in finding that the dismissal was harsh, unjust or unreasonable were appropriate.

Accordingly, the Full Bench was not persuaded that there were any errors of fact in Commissioner Roberts’ decision. The Full Bench also rejected Linfox’s arguments challenging the reinstatement order and order to pay part compensation for lost wages.

Linfox applied to the Federal Court seeking judicial review of the Full Bench’s decision.

Decision of the Full Federal Court

Justices Dowsett, Flick and Griffiths refused to grant the appeal, observing that the Court’s role in an appeal of this type was to review the decision of the Full Bench for jurisdictional error. Linfox argued such error was to be found in FWA’s:

  1. Failure to address a submission that there was inconsistent evidence from Mr Stutsel about his understanding of the private nature of his Facebook page

  2. Failure to deal with submissions as to whether Mr Stutsel gave truthful answers during his interview with Ms Neill and the credibility of Mr Stutsel generally

  3. Taking into account of an “irrelevant consideration”, namely the “differential treatment” as to the manner in which other employees had been treated (being the fact that no disciplinary action had been taken by Linfox against other employees involved in the Facebook exchanges)

  4. Conclusion that Mr Stutsel’s work history was such that his dismissal was harsh in the circumstances

  5. Conclusion that Mr Stutsel was exercising an asserted “right to free speech

The Court found that no jurisdictional error had occurred, observing that the submissions relied upon by Linfox exposed nothing more than a challenge to the factual merits of the decisions made by both Commissioner Roberts and the Full Bench. Such challenges fell well short of establishing jurisdictional error on the part of the Full Bench.

Linfox Australia Pty Ltd v Fair Work Commission and Glen Stutsel [2013] FCAFC 157

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