Not so ‘funny’ meme: FWC finds sexually explicit Facebook post warranted dismissal, despite the employer’s ‘rather unusual’ workplace culture

The workplace culture of an organisation should reflect the values that the business upholds and expects of its employees. It is becoming increasingly challenging for employers and employees to understand where a line is drawn between a relaxed and open workplace culture and a workplace culture that tolerates inappropriate behaviour.

This holds especially true in an age where social media use imposes significant risks to the employer’s business and its employees.

In the recent decision of Thompson v 360 Finance Pty Ltd [2021] FWC 2570, the Fair Work Commission (FWC) was tasked with unpacking the difficulty surrounding a series of inappropriate social media posts in the context of a workplace culture that had previously tolerated such behaviour.

The employee was engaged as a Finance Broker for 360 Finance Pty Ltd (the Employer). In June 2020, the employee posted an inappropriate meme to Facebook which was sexually explicit in nature and involved a female colleague.

While the employee had sought permission from his female colleague prior to posting the meme, it was later revoked and he was asked to remove the post from Facebook. The employee eventually removed the post, but then proceeded to upload a second meme mocking the events that had just occurred.

The Employer commenced a disciplinary process with the employee. The employee stated that he did not find the memes to be inappropriate as he did not have the Employer listed as his place of employment on his social media account. Additionally, the employee maintained that he had obtained permission from his colleague whose image he used to make the meme.  

The Employer did not accept the employee’s response to its allegations and provided the employee with an opportunity to show cause as to why his employment should not be terminated. The employee refused to provide a written response to the show cause process and maintained that he did not believe posting a ‘funny meme’ warranted termination.  

The Employer was not satisfied that the employee had sufficiently mitigated his serious misconduct and therefore summarily dismissed the employee on the grounds that he had engaged in social media misuse, misuse of company property, sexual harassment and a failure to adhere to the Employer’s policies or act in its best interest.

The employee lodged an unfair dismissal application with the FWC. The employee claimed that his conduct was to be considered in the context of the Employer’s workplace culture which had previously tolerated similar behaviour openly and without consequence. In support of this, the employee submitted that the Employer had given him a number of ‘final warnings’ for similar conduct and so he had no reason to expect that he was actually on his final warning.

The FWC found that the Employer’s workplace culture fell ‘considerably short of the standards expected of a workplace’. It also accepted that the series of ‘final warnings’ demonstrated that the Employer’s disciplinary process was not perfect and may have caused confusion to the employee.

Despite this, the FWC found that the Employer’s mismanagement occurred predominately under its previous owners and it was now taking considerable steps to make improvements to its workplace culture and operations. Accordingly, the FWC was satisfied that the Employer’s actions were consistent with a reforming workplace that did not tolerate such behaviour. 

Turning then to the employee’s conduct, the FWC stated that while the employee had permission to post the first meme, once this permission was revoked, he took a considerable amount of time to remove the post and then made a second post which was retaliatory in nature.

The FWC held that the employee’s actions were ‘plainly inappropriate, if not also unlawful’ and that he ought to have reasonably foreseen the consequences to his actions. The FWC added that the employee had consistently shown a lack of remorse and that this constituted a considerable lack of insight into the seriousness of his actions. 

In finding that the employee’s conduct was serious misconduct and that the process undertaken by the Employer was fair and reasonable, the dismissal was found to not be unfair despite the ‘rather unusual robust working environment’. The application was therefore dismissed.

Lesson for employers

The culture of an organisation should reflect the values that the business upholds and expects of its employees. Employers must regularly train and educate employees on appropriate workplace behaviour and social media use.

As seen in this decision, promoting a positive workplace culture also means taking disciplinary action where appropriate to enforce the standard of behaviour expected of employees.

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.

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