Industrial umpire supports Linfox’s decision to sack a worker in part for refusing to acknowledge the company’s social media policy
Linfox’s fledgling social media policy has withstood a legal challenge, while businesses more broadly have gained Fair Work Australia’s backing to restrict what their employees say online outside of work hours.
Malcolm Pearson lost his distribution centre job with Linfox for a number of transgressions that included a failure to sign a form stating he understood the transport firm’s social media policy.
Linfox enacted the policy after one of its truck drivers used Facebook to insult his managers.
Pearson launched an unfair dismissal claim and told Fair Work he refused to sign the policy because it limited what he could do outside of work.
“As Linfox do not pay me or control my life outside of my working hours, they cannot tell me what to do or say outside of work, that is basic human rights on freedom of speech,” Pearson told the industrial umpire.
But Fair Work Commissioner David Gregory ruled Linfox’s request was lawful and reasonable and that employees should accept conditions on what they can do in their own time.
“I accept that there are many situations in which an employer has no right to seek to restrict or regulate an employee’s activities away from work,” he says.
“However, in the context of the use of social media, and a policy intended to protect the reputation and security of a business, it is difficult to see how such a policy could operate in this constrained way.
“Is it suggested that an employer can have a policy in place that seeks to prevent employees from damaging the business’s reputation or stopping them from releasing confidential information while at work, but leaving them free to pursue these activities outside of working hours?
“This would be an impractical approach and clearly there are some obligations employees can accept as part of their employment relationship that have application whether they are at work or involved in activities outside of working hours.”
Pearson also incurred Linfox’s wrath for failing to notify his manager when he was absent from work.
He received a warning for not abiding by Linfox’s requirement for mobile phones to be switched off at work and for breaching safe working procedures when loading a trailer.
Fair Work Australia heard that Pearson did not take the keys from the truck driver before loading the trailer and he also began loading when the driver was not in the exclusion zone.
“In all the circumstances I am satisfied Linfox had a valid reason to dismiss Mr Pearson based on an objective analysis of the relevant facts,” Gregory says.
Linfox copped flak in 2011 from Fair Work Australia for failing to have a social media policy in place when it sacked its driver for using Facebook to attack his managers.
The driver, Glen Stutsel, was reinstated. Linfox appealed the matter to the Federal Court but lost.
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