FWA gives social media clarity in rejecting Linfox


Linfox loses appeal against reinstatement of a truck driver who used his Facebook page to slag off his colleagues

FWA gives social media clarity in rejecting Linfox
FWA gives social media clarity in rejecting Linfox

By Rob McKay | October 4, 2012

Linfox may have backed its managers to the hilt with its Fair Work Australia (FWA) appeal in the Stutsel case
but it received short shrift when the industrial umpire rejected its arguments and approach.

The full bench’s decision appears also to reinforce some leeway - in employment law at least - for employees’ use of social media to be shielded from employer action.

The appeal came after the company lost out in a FWA decision last December that it must reinstate veteran driver Glen Stutsel after it sacked him upon discovering a series of derogatory posts by him and others on his Facebook page.

But in hearing the appeal, Senior Deputy President Justice Alan Boulton, Senior Deputy President Anne Harrison and Commissioner Barbara Deegan supported Commissioner Michael Roberts in almost all respects.

They found that Roberts had properly taken relevant matters into account and that, even if the Facebook comments had constituted a valid reason for the sacking, to do so would still have been "harsh, unjust and unreasonable" for six reasons.

These were:

  • The long period of Stutsel’s satisfactory employment with Linfox, his age and his employment prospects
  • The circumstances in relation to the publication of the offensive comments, and, particularly, Stutsel’s belief 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
  • The conduct complained about occurred outside of the workplace and outside of working hours
  • Some of the statements complained about on the Facebook page were not made by the Stutsel, but by other persons, and Stutsel did not know that he could delete comments from his Facebook friends once they had been posted;
  • Linfox did not take action against other employees who took part in the relevant Facebook conversations
  • The finding that Stutsel was "fully aware of the comments on his Facebook page were foolish and he regrets the entire situation".

Perhaps the most stinging aspect was the appeal bench’s calling into question the company’s motivation in pursuing the case.

"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," it says.

On the use of social media, the appeal bench found there was a distinction between comments made in and aimed at colleagues in the workplace and those appearing online socially.

"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," it says.

"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."

 

Linfox did have one minor victory.

"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," it was found.

A Linfox spokesman had no comment to make or any knowledge of company plans relating to the case.

the full decision can be viewed here:

 

 

 

http://www.fwa.gov.au/index.cfm?pagename=cdrorders

You can also follow our updates by joining our LinkedIn group or liking us on Facebook