The Fair Work Commission (“FWC”) has upheld the dismissal of a finance broker who was terminated for inappropriate social media activity. The decision serves as a reminder that inappropriate social media activity can be a valid reason for dismissal, and the importance of enforcing expectations of appropriate behaviour.

Background

360 Finance terminated the employment of a finance broker for posting two memes on Facebook which it deemed to be inappropriate. The first meme contained a picture of the employee and a female employee saying, “you pulled out right?” and “yeah, of course”, with a picture of a washing machine leaking suds onto the floor. Later the same evening the employee posted another meme with a picture of himself saying, “that moment after you’ve dropped a meme with the aim to upset some c… and you get to hear c… are upset.”

The female employee who featured in the picture initially gave permission for it to be posted on Facebook, but it was taken down when she subsequently changed her mind and asked for it to be removed. Nevertheless, the employee was dismissed on 19 June 2020 for misusing social media, misusing the employer’s property, sexual harassment and for failing to adhere to the employer’s policies. The employee subsequently lodged an unfair dismissal claim in the FWC.

The employee claimed that that the employer had consistently accepted poor behaviour and a substandard culture throughout his employment. The employee claimed that this behaviour had been regularly tolerated by the employer both from himself and other employees, and therefore his behaviour could not amount to serious misconduct. The employee argued that these poor standards were evident by the fact that he was still promoted to a leadership position in 2019 despite his long history of poor behaviour.

Over the course of his employment the employee had received three final warnings on different occasions. Firstly, for breaching the employer’s policy by storing client files in his desk drawers, secondly, for a breach of privacy for not disclosing he was receiving emails meant for someone else and lastly, for sexist comments made to a supplier. He claimed he had received so many final warnings in the past that the final warnings did not have the effect of a final warning.

Outcome

The FWC highlighted that the previous management of the employer had taken a permissive approach to staff management. The employer hired new managers in 2019, including a general manager who sought to improve the culture of the organisation. While the FWC agreed that the culture of the workplace fell considerably short of generally accepted standards, it also recognised that the new management was attempting to reform the culture.

Given that there was little dispute about the facts of the inappropriate social media activity, the question before the FWC was whether the dismissal was unfair considering the poor culture and unusual work environment of the employer. The FWC held that the dismissal was a reasonably foreseeable consequence for posting the memes to Facebook. The FWC held that even in light of the poor culture and the “procedural imperfections” around the number of written warnings, the employee’s conduct was still inappropriate and serious enough to justify dismissal.

Importance of enforcing policies and culture

The FWC placed special consideration over the attempts by the new management of the employer to improve the performance culture. This highlights the importance of ensuring that organisations have adequate policies to regulate behaviour and culture, including inappropriate social media activity. These policies must be applied consistently and proactively to ensure that standards of behaviour are maintained.

Key Takeaways

• Inappropriate social media activity may be a valid reason for dismissal, and in some cases can be considered serious misconduct.
• Employers must ensure that social media and behaviour policies are appropriately drafted and updated to reflect expected standards of behaviour within an organisation.
• Employers who do not consistently enforce their policies and who allow employees to breach them risk creating poor work cultures, which makes it more difficult to manage issues of misconduct.

A copy of the decision is available here.

People + Culture Strategies