Say it to my face: FWC sends strong warning to employees about social media

The Fair Work Commission (FWC) has applied a “common sense” approach to a recent unfair dismissal claim that involved intimidating and threatening behaviour by a supervisor towards a subordinate employee via text message and on social media.

In Natoli v Anglican Community Services t/a Anglicare [2018] FWC 2180, a Servery Supervisor at a residential aged care facility was summarily dismissed after it was determined that she had sent inappropriate text messages containing unsubstantiated allegations to the subordinate and had posted highly offensive and threatening messages on Facebook that caused the subordinate significant distress and concern for her safety.

The conduct arose after the Supervisor discovered her partner’s car had been damaged the day after she had driven it to work. The Supervisor believed that the subordinate had caused the damage recalling that they had argued at work two days prior and the car had been parked next to the smokers’ area (the subordinate was a smoker).

Acting on her belief that the subordinate had caused the damage, the Supervisor engaged in the following conduct:

  • Sending text messages to the subordinate which stated in part:

    • “You’re a nasty piece of work”; and
    • “You selfishly damage a 60 grand vehicle and caused 6 grand damage because of your childish behaviour. This isn’t over Charlene. You have no idea how furious John is!”

  • Despite the subordinate denying the allegation, the Supervisor posted a photo of the damaged car on Facebook and wrote:

“A nasty piece of work in my workplace decided she would teach me a lesson by scratching John’s 60 thousand dollar vehicle, which I was borrowing yesterday. The little f*cker didn’t like being told to complete her duties before month end so this is the result. John’s rightfully furious and so am I. Watch out. This is over 6 grand damage!”

  • The employee then “liked” her partner’s comment on the photo, which read “wait till I get my hands on you, you fat piece of sh*t”.

In the proceedings, the Supervisor admitted that her text messages were intended to scare and offend the subordinate, however, denied that her overall conduct was threatening or intimidating particularly noting that:

  • The Facebook post did not name the subordinate;
  • It was posted to a closed group of Facebook friends;
  • The post was removed a week later when the Supervisor realised that it could be construed as threatening; and
  • The Supervisor was not aware of any social media policy and certainly had not been trained on one.

The Supervisor relied largely on the contention that her conduct was a one-off incident in the heat of the moment and in the context of having an excessive and stressful workload. The Supervisor submitted that she had made a mistake, acknowledged the conduct was “not ideal” and had proposed a remedy of mediation which her employer had rejected. In those circumstances, the Supervisor claimed her termination was unreasonable.

The Supervisor also submitted that it was grossly unfair that she was not afforded one “slip-up” noting her 11 years of service and exemplary performance (for which she had received numerous awards).

The FWC was very blunt in dismissing the Supervisor’s arguments and upholding the dismissal.

The FWC rejected the explanation that the conduct was “spur of the moment” and found that it was deliberate conduct that was offensive and unacceptable, in circumstances where the Supervisor was at home (without the diversion of work) and had time to consider her response to the subordinate’s denial of the allegation. It considered the Supervisor’s attempt to downplay the threat in her messages to be “grasping at straws” and that the motivation of the conduct was to clearly to scare, intimidate and threaten the subordinate.

The FWC was not satisfied that the Supervisor had demonstrated any level of contrition particularly as she had not apologised to the subordinate and did not delete the Facebook post until one week later. The FWC considered that the Supervisor’s acknowledgement that her conduct was “not ideal” did not amount to contrition and even so, was likely done in the interests of saving her job as opposed to any genuine attempt to recognise that her behaviour was unacceptable.

The Deputy President presiding over this matter also took the opportunity to express his frustration that employees continued to plead a lack of training in defence of using social media to engage in bullying, harassing or threatening behaviour – the effects of which should be obvious to any reasonable person regardless of whether or not they have had training on the appropriate uses of social media.

In this particular instance, the Deputy President stated that no employee needs training to realise that threatening and harassing a subordinate employee, particularly without evidence, is entirely contrary to common sense and acceptable behaviour. In any event, the employer had satisfactorily rebutted this argument and it was apparent that the Supervisor was fully aware of what she could and could not post on Facebook – she had carefully worded the post without naming the subordinate but knowing full well that her Facebook friends would know exactly where she worked and who she was referring to.

Finally, the FWC rejected that the employee’s length of service and work performance should stand as any excuse for what was essentially a serious incident of poor judgment and an inability to get on with others in the workplace, or that it should otherwise allow employees to treat their co-workers with disrespect or a bad temper.

The Supervisor’s application was dismissed.

Lessons for employers

All employers should maintain a social media policy that sets out what the employer considers to be appropriate and inappropriate use of social media for employees. Social media policies can be important documents to rely upon and can provide employers and employees with guidance on complex issues.

There has finally been some recognition from FWC that there are certain things, such as how to behave appropriately in person and on social media, that should not require training.  This recognition certainly assists employers who may currently feel that they have to train everyone for everything.

More generally, this decision has shown support for employers who make the sensible decision to hold their employees accountable for unacceptable conduct regardless of their stature, work performance or length of service.

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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