[2011] FWA 8444 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Glen Stutsel
v
Linfox Australia Pty Ltd
(U2011/8497)
COMMISSIONER ROBERTS |
SYDNEY, 19 DECEMBER 2011 |
Application for unfair dismissal remedy - arbitration - social media - Facebook.
[1] This decision concerns an application lodged on 2 June 2011 by Mr Stutsel pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the alleged unfair termination of his employment by Linfox Australia Pty Ltd (Linfox or the Company). The application was dealt with by a Fair Work Australia Conciliator on 30 June 2011 but the conciliation was unsuccessful.
[2] The Arbitration came before me for hearing in Sydney on 4 and 5 October 2011. Mr Stutsel was represented by Mr O Fagir of the Transport Workers Union of Australia (the TWU) and the Company by Mr M Baroni of Clayton Utz. On 11 October 2011 the TWU made an application to reopen Mr Stutsel’s case on the basis that it had “obtained further evidentiary material ... apparently of significance to the proceedings.” The application was opposed by Linfox. After a hearing conducted on 17 October 2011, I made an ex tempore Decision refusing the TWU’s application,
[3] Mr K Hurst, a TWU Official, and Mr Stutsel gave sworn evidence for the Applicant. Ms G Neill (Group Manager Workplace Relations), Mr M Assaf (Transport Manager) and Ms N Russell (NSW Resource and Planning Manager) gave sworn evidence for the Company.
Background
[4] Mr Stutsel was employed by Linfox as a truck driver from April 1989 until his employment was terminated by the Company for serious misconduct, albeit with the payment of notice, on 31 May 2011. Mr Stutsel was the TWU delegate at his site until his dismissal. In the termination letter dated 31 May 2011, the Company provided the following reasons for the dismissal:
“1. on your Facebook profile page, which was open to the public, you made a number of statements about one of your managers, Mick Assaf, that amounted to racially derogatory remarks;
2. on your Facebook profile page, which was open to the public, you made a statement about one of your managers, Ms Nina Russell, which amounted to sexual discrimination and harassment; and
3. you made extremely derogatory comments about your managers, Mr Assaf and Ms Russell.”
[5] The termination letter went on to say:
“The above conduct is extremely serious, and Linfox cannot in any way condone or fail to deal with these matters appropriately.
Notwithstanding the conduct outlined above amounts to serious misconduct, Linfox has taken into consideration your significant length of service therefore a decision has been made that your employment will not be terminated summarily, but you will be provided with notice in accordance with your contract of employment.
In addition of [sic] your payment in lieu of notice, you will receive all of your outstanding entitlements, and any pro rata long service leave owing to you.”
[6] Mr Stutsel maintains that his Facebook account was created with ‘maximum privacy restrictions’ and was not at the time ‘open to the public’. He denies having made any ‘extremely derogatory comments’ about his managers and maintains that his record with the Company during his 22 years of service was unblemished.
[7] In this decision I will largely refer to the content of Mr Stutsel’s Facebook page in broad terms as to do otherwise would involve the reproduction of some content that would best not explicitly set out.
Evidence
Mr Hurst
[8] Mr Hurst gave sworn evidence and submitted a witness statement 1.
[9] In his statement Mr Hurst said that he has been a TWU Official for some five and a half years and prior to that was a truck driver for some fifteen years. At the time of Mr Stutsel’s termination of employment he was the TWU Official responsible for the location where Mr Stutsel was based. He attended a disciplinary meeting on 20 May 2011 with Mr Stutsel at which he was told by Ms Neill “that I was to be a witness only and that I had no right to speak or participate in the meeting.”
[10] Mr Hurst went on to say that: “I understand that Ms Nina Russell has made a statement in these proceedings where she has indicated that she was shocked, offended, disturbed and deeply upset by some comments made by Glen on Facebook. I am a little surprised that Ms Russell has had such a strong emotional reaction, because Ms Russell is known for her robust attitude at work.”
[11] In cross-examination, Mr Hurst said that neither he nor Mr Stutsel was aware prior to the meeting on 20 May 2011 what the meeting was about. 2 Mr Hurst went on to confirm his evidence in chief that he had been told by Ms Neill at the beginning of the meeting that he had no right to speak or participate and was only present as a witness.3
Mr Stutsel
[12] Mr Stutsel gave sworn evidence and submitted a witness statement 4.
[13] In his statement, Mr Stutsel set out his work history at Linfox. “My work history is excellent and I have no disciplinary matters of any substance on my record. To the best of my recollection I have no warning letters and the only file notes I might have on my record relate to industrial action from a number of years ago.”
[14] Mr Stutsel went on to say, in summary:
[15] In cross-examination, Mr Stutsel:
[16] Mr Stutsel also submitted a second statement 19 in reply to the statements of Mr Assaf, Ms Russell and Ms Neill. Mr Stutsel’s second statement also dealt with negotiations which led up to the current enterprise agreement covering the NDC.
[17] In relation to Ms Russell’s statement, Mr Stutsel said that the comments made about her on his Facebook page were not made by him but by two former Linfox employees. He went on to say that the ‘bear material’ arose “in the course of a non-serious exchange with Linfox supervisor George Papa. I acknowledge however that Mr Assaf and Ms Russell could be hurt by the comment, even though it clearly wasn’t serious. I say once again that I did not anticipate that any of my comments would become known to them.”
[18] In relation to Mr Assaf’s statement, Mr Stutsel said that “the idea that my comments would offend Mr Assaf simply never occurred to me.” In relation to Ms Neill’s statement, Mr Stutsel said that he could not recall ever seeing Linfox’s Workplace Diversity Policy. He went on to say that Ms Neill’s evidence in relation to the conversation between them on 20 May 2011 is generally correct but many of his responses were left out. After he met with Ms Neill he deleted all comments from his Facebook page.
[19] The above is a broad outline of some of the relevant material in Mr Stutsel’s reply statement but I have paid regard to all of it in the making of my decision.
Mr Assaf
[20] Mr Assaf gave sworn evidence and submitted a witness statement 20.
[21] In summary, it was Mr Assaf’s statement that:
[22] Mr Assaf’s witness statement went on to set out in detail the comments posted on Mr Stutsel’s Facebook page that fall under the four categories that he found offensive. I have paid regard to that detailed material.
[23] The statement went on to say that he advised Ms Neill of his concerns on 16 May 2011 and was told by Ms Neill that she had already received a complaint from Ms Russell. On 17 May 2011 he met with Mrs Neill and explained to her “that I found Mr Stutsel’s comments about religion and his reference to me as a ‘certain bacon hater’ particularly offensive. I also advised Mrs Neill that I was particularly disappointed because I had, some years earlier had a discussion with Mr Stutsel wherein I explained that comments about religion were inappropriate. Mrs Neill advised that she was conducting an investigation into the allegations in accordance with the Linfox Workplace Diversity Policy.”
[24] On 23 May 2011, he was advised by Ms Neill that she had interviewed Mr Stutsel on 20 May and Mr Stutsel had been allowed to respond to the allegations she put to him.
[25] In cross-examination, Mr Assaf said:
Ms Neill
[26] Ms Neill gave sworn evidence and submitted a witness statement 25.
[27] In her statement Ms Neill said that she has been employed by Linfox since May 1998 and is based in the NSW State office. Her current role comprises a broad range of workplace relations and human resources functions. Her involvement with Mr Stutsel relates to an investigation conducted by her into the complaint lodged by Ms Russell.
[28] Ms Neill’s statement went on to set out Linfox’s induction training. The Linfox Red Book Induction provides, inter alia, that:
“6.1 Equal Opportunity and Diversity
All Linfox staff are entitled to the respect and support of their work colleagues. Everyone therefore must ensure no one is unlawfully discriminated against or harassed.
Linfox will and expects all employees to:
[29] Mr Stutsel participated in the induction program.
[30] On 16 May 2011, she received an email complaint from Ms Russell.
[31] Ms Neill met with Ms Russell on 16 May 2011 and was advised by Ms Russell that “after submitting the original complaint, she has discovered additional comments which she found offensive, derogatory and humiliating. Ms Russell provided me with printed ‘screenshots’ of the comments to which she was referring.”
[32] At her request, Ms Russell logged on to Mr Stutsel’s Facebook page and entered the comments section. “In reading the comments I was struck by how many derogatory comments Mr Stutsel had made about Ms Russell, other Linfox employees, Linfox managers and Linfox itself.”
[33] After meeting with Ms Russell, she commenced an investigation pursuant to the Linfox Workplace Diversity Policy 26. She also received a request from Mr Assaf to investigate Mr Stutsel’s Facebook comments and met with him on 17 May 2011. “Mr Assaf advised me that he was deeply offended and hurt that one of his direct reports would make such hurtful and derogatory comments about him and the fact that he is a practising Muslim.” Mr Assaf informed her of an earlier event in which he believed Mr Stutsel behaved inappropriately over a religious issue and that “Mr Stutsel had given him an assurance that he would not, in future, make insensitive comments about religion.”
[34] On 20 May 2011, she met with Mr Stutsel together with Mr Bayley (Ms Russell’s manager) and Mr Hurst of the TWU. Ms Neill then sets out in detail the interview between herself and Mr Stutsel. Ms Neill claims that Mr Stutsel admitted during the interview that his Facebook page was in a public forum and that he is responsible for all comments placed on that site. Mr Stutsel had said that he viewed his Facebook page as being ‘conversations with your friends’. Mr Stutsel had denied that any of the material on his Facebook page was threatening, offensive, insulting or racist. The interview with Mr Stutsel concluded with her “advising Mr Stutsel that these allegations were very serious and his employment was in jeopardy. I further advised him that I would be suspending him from work, on pay, while Linfox considers his responses and completed the other aspects of investigation.” The following conversation then occurred between Mr Stutsel and herself:
“Mr Stutsel: ‘Am I going to be terminated for this?’
Me: ‘At this stage I can’t answer that, this is very serious, I need to complete the rest of the investigation however I can tell you again, this is very serious and your employment could be jeopardy. Depending on the outcome of the investigation, yes, you could be terminated.’”
[35] Ms Neill met with Mr Bayley, Mr S Warncken (Vice President Coles) and Mr N Capp (President Retail) on 26 May 2011 to discuss the outcome of her investigation and her findings. “I advised the parties that I was satisfied that Mr Stutsel had on the balance of probabilities engaged in conduct on Facebook that amounted to discrimination of a sexual and racial nature. Therefore, Linfox should give consideration to the termination of Mr Stutsel’s employment for serious misconduct.”
[36] Mr Capp then advised her that the recommendation to terminate Mr Stutsel’s employment was accepted. She then met with Mr Stutsel and Mr Hurst on 31 May 2011 and advised Mr Stutsel of the decision to terminate his employment. A request was made by Mr Hurst as to “whether Linfox would consider allowing Mr Stutsel to remain employed after being relocated to another site.” She rejected that proposal and Mr Stutsel was issued with a termination letter 27.
[37] Ms Neill’s statement went on to respond to a number of matters in Mr Stutsel’s statement. Relevantly, she said: “At the time of the investigation, Mr Stutsel asked if he could apologise to both Ms Russell and Mr Assaf. At that time I was completing the investigation and so I suggested that it may not be appropriate until the investigation was completed”
[38] In cross-examination, Ms Neill:
Ms Russell
[39] Ms Russell gave sworn evidence and submitted a witness statement 38.
[40] Ms Russell’s statement was that she has been employed by Linfox since June 2009 and her current position is responsible for all aspects of the Linfox Coles business in NSW. Mr Assaf reported directly to her when he was site manager of the NDC where Mr Stutsel was employed.
[41] On 13 May 2011 she accessed Mr Stutsel’s Facebook page which was ‘open to the public’ meaning that she did not have to be his ‘Facebook friend’ to access all the information on that page. On accessing the page, she almost immediately discovered material that she considered “deeply offensive and threatening”.
[42] Ms Russell’s statement contains the following dialogue between Mr Stutsel and another Linfox employee:
“Mr Stutsel: ‘Morning Georgy, having a fun non NDC day are we?’
George Papa: ‘Mate I have slept like a bear, I'm surprised I didn't get called in as Mark called in sick this am, oh well have the next 4 days off I'll think I'll need everyone one of em after last night.’
Mr Stutsel: ‘Turn your phone off. So you reckon you slept like a bear? Are you aware of just how a bear sleeps. When a bear hibernates, apart from sleeping in a dark cold cave for several months, not having anything to eat or drink for that time, it also packs its asshole with dirt and sticks before going into a deep sleep.’
George Papa: ‘Since when have you become a bear expert haha.’
Mr Stutsel: ‘You can call it a bit of professional courtesy, I admire any creature that has the capacity to rip Nina and Assaf heads off, shit down their throats and then chew up and spit out their lifeless body!’”
[43] Ms Russell then emailed a complaint 39 to Ms Neill in the following terms:
“This evening I logged on to my Facebook page and discovered a birthday reminder for former Linfox employee Ray Clewett. I went on to Ray’s page to leave Ray a birthday message and found that Glen Stutsel who is currently employed at the Coles NDC site which I oversee as part of my role, had also left Ray birthday wishes. Out of interest, I decided to look at Glen’s page. Whilst reviewing the messages, status updates and comments on Glen’s Facebook page, I read a comment made by Glen, which I believe to be in reference to Michael Assaf, Glen’s current Site Manager, and I. I have attached a screen dump of the comment.
After reading this comment, I’m deeply upset that an employee working within the contract I manage, appears to have articulated in graphic detail what can only be described as my torture, mutilation and death. I find it both revolting and frightening that such a horrific comment has been made about me on a social networking website which is very much in the public domain and is heavily trafficked by both my colleagues and direct reports.
Although I am loath to escalate this issue to you, I feel I will be unable to perform the core requirements of my role whilst I’m attacked in this manner, albeit on Facebook rather than in the actual workplace.”
[44] Ms Russell’s statement went on to say that, after making her initial complaint, she “again viewed Mr Stutsel’s Facebook page and reviewed other comments posted by him and others. In reading the comments I noticed a number of derogatory comments posted about me, other Linfox employees, Linfox managers and Linfox itself.” Ms Russell’s statement continues with a detailed recitation of dialogue taken from Mr Stutsel’s Facebook page between Mr Stutsel and other persons.
[45] “I was very concerned about these remarks and their potential ramifications for Linfox. I was concerned that Mr Stutsel’s views could be mistaken for views endorsed by Linfox because Mr Stutsel’s Facebook profile was of a Linfox truck and his Facebook page was not only ‘public’ meaning it could be accessed by anyone with a Facebook account but it also contained links to other general transport Facebook pages and web-pages. This issue is very relevant to Linfox because the company operates within 10 countries across the Asia Pacific region and has offices in countries with large Muslim populations, such as India and Indonesia. In addition, I was concerned that Mr Stutsel’s views would be deeply offensive to Mr Stutsel’s site manager Mr Michael Assaf, who is one of my direct reports and is a practising Muslim.”
[46] Ms Russell also believes that unflattering references to ‘a Linfox female manager’ were directed at her and that “these comments implied that I provided sexual favours for employees in exchange for industrial peace.”
[47] Ms Russell’s statement went on to set out conversations on Mr Stutsel’s Facebook page which she said indicated that Mr Stutsel should have been aware that his page was open and accessible to the public.
[48] “On 16 May 2011, I contacted Mr Assaf to advise him that I had made a complaint about comments made by Mr Stutsel, one of his direct reports on Facebook. In addition, I also advised Mr Assaf that comments had also been made about him as well as other Linfox managers. As Mr Assaf does not have a Facebook account, I accessed Facebook with Mr Assaf. Mr Assaf viewed the comments made by Mr Stutsel and indicated that he was hurt and offended by a number of comments which had been made.”
[49] Ms Russell met with Ms Neill on 16 May 2011 “to go through my complaint”. Ms Neill told her that she would conduct an investigation into the allegations and later advised her that she had interviewed Mr Stutsel on 20 May 2011.
[50] Ms Russell’s statement went on to respond to Mr Stutsel’s witness statement. In her response, Ms Russell denied that she accessed Mr Stutsel’s Facebook page through his account. “I have only ever viewed the publicly accessible information contained on Mr Stutsel’s Facebook page.” Ms Russell further said that she rejects any suggestion by Mr Stutsel that he is sorry for any hurt and offence caused by his comments. “Mr Stutsel did not express remorse for having written the comments, merely remorse for having been caught by Linfox.”
[51] In cross-examination, Ms Russell said:
Written submissions
[52] Both parties filed written outline of submissions prior to the hearing, in accordance with directions. Those submissions were marked as Exhibits TWU 7 and Linfox 5 respectively.
The TWU
[53] In its submissions on behalf of Mr Stutsel, the TWU argued that Ms Russell’s accessing Mr Stutsel’s Facebook account was without his knowledge or consent.
“Mr Stutsel’s account was created with maximum privacy restrictions and was not at the time ‘open to the public’. The applicant is unable to explain how the settings changed such that Ms Russell was able to access the page, however, it is likely this was a result of a unilateral change of settings by Facebook earlier in 2010. As far as Mr Stutsel was aware, only his invited ‘friends’ (which did not include Ms Russell and Mr Assaf) were able to access his page.
The applicant denies that he:
a) made comments about his manager Mr Assaf which amounted to racially derogatory remarks;
b) made a statement about Ms Russell which amounted to sexual discrimination or harassment; and/or
c) made “extremely derogatory comments” about his managers.
Stutsel was an employee of exceptionally long standing with an unblemished work history in his twenty two years with the company.
There was no valid reason for the termination of Mr Stutsel’s employment.
Mr Stutsel’s dismissal was further harsh having regard to the nature of the misconduct, the length of Mr Stutsel’s service and its effects on his and his family’s circumstances.”
Linfox
[54] Submissions on behalf of Linfox argued that the implied terms in the Applicant’s contract of employment provided that he:
“(a) act with good faith and fidelity;
(b) not breach the required obligation of trust and confidence;
(c) promote his employer’s business interests;
(d) not take any actions which would damage his employer.”
[55] The submissions went on, in summary, to argue that:
Oral submissions
[56] Both parties made oral submissions at the close of proceedings.
Mr Fagir
[57] Mr Fagir’s oral submissions were broad-ranging and the areas I consider relevant to my consideration are set out below.
[58] Mr Fagir relied in part on the International Convention on Civil and Political Rights, in particular Article 17, 18 and 19 concerning arbitrary or unlawful interference with correspondence, freedom of thought and the right to hold opinions without interference and the right with freedom of expression. “It’s not only that you have the right to say what you say but you have the right to say that free of investigation or judgment by your employer.” 44
[59] “The proposition in terms of the right to privacy is simply that Ms Russell’s decision to investigate Mr Stutsel’s page for no apparent reason, in an arbitrary way, to use the language of the Convention, was an unwarranted invasion of Mr Stutsel’s right of privacy.” 45
[60] “[W]e say that the Act, viewed properly and as a whole, endorses a set of rights and that in applying the various provisions of the Act, including Part 3-2, the tribunal should have regard to those rights of employees, including, first, the right to be free of arbitrary interference with their privacy; (2) the right to freedom of thought, opinion and expression; and (3) the right to proactively protect and improve their conditions of employment, particularly as part of a trade union, and to express views about those conditions” 46
[61] Mr Fagir argued that: “Mr Stutsel is obliged to act in good faith and with fidelity in carrying out his duties as a truck driver. This isn’t some broad-ranging duty that applies to all facets of an employee’s life ...” 47
[62] “It can’t be the case that any company which has an employee of a particular religion, by virtue of that fact has a right to insist that its employees not express views about that religion. The same matter might be applied to politics or a range of other issues. It simply can’t be the case that an employee’s general right to freedom of expression could be limited simply because that expression has some possible theoretical impact on some aspect of the employer’s business.” 48
[63] In summary, Mr Fagir’s submissions went on to argue that:
[64] In relation to the ‘bear material’, Mr Fagir argued that: “No doubt they’re in bad taste, they’re inappropriate, they definitely have potential to offend if the objects of them became aware of them, but they have to be viewed in their context, which is an unserious exchange with a manager, talking about bears and their hibernation habits and making what really seemed like inaccurate comments about the hibernation habits of bears and sticks and so on; inappropriate, offensive, but viewed in context, not gross misconduct. Of course, Ms Russell characterises it as a precise description of her torture, mutilation and so on. That’s putting it far too dramatically. The phrase “rip your head off and shit down your throat” is idiomatic. It’s a phrase that its actual meaning doesn’t accord with its literal meaning of its constituent parts.” 55
[65] Mr Fagir went on to say in relation to the bear comments: “It’s a strange comment in some ways, and it’s a silly one, but there’s of course no real threat of violence towards any managers. It’s an expression of some antipathy and hostility but no more than that.” 56
[66] In relation to possible compensation, Mr Fagir said that compensation was not being actively sought or pressed. In that regard, a short conversation occurred between Mr Fagir and myself in the following terms:
“THE COMMISSIONER: Let’s call a spade a spade. You’re not requesting any back pay - let’s call it that - but would be open to me giving it to him?
MR FAGIR: Yes. I don’t - - -
THE COMMISSIONER: But you wouldn’t press me to give it to him?
MR FAGIR: Exactly.” 57
Mr Baroni
[67] Mr Baroni’s oral submissions were also broad-ranging and the areas I consider relevant to my consideration are set out below.
[68] Mr Baroni said that “submissions about international obligations, a right to privacy and matters of the like ... none of those matters can be of any relevance and certainly do not constitute any proper law for the tribunal to take into account in making its decision.
[69] In summary, Mr Baroni’s submissions went on to argue that:
In Ms Neill’s case: “Based on the facts that were before her, based on the comparison between the comments of Mr Stutsel, the fact that it was his Facebook page, and compare that to the one or two comments by others ... It was entirely appropriate for her to conduct the investigation in the manner that she did.” 68
[70] I have also paid regard to the case law cited by each party.
Conclusions and findings
[71] Mr Stutsel’s employment was terminated for serious misconduct, on the basis of comments which appeared on his personal Facebook page. The termination letter (see paragraphs 4 and 5 above) set out three grounds for the termination. Some of the evidence encompasses other allegations against Mr Stutsel. In my decision making I have confined myself to the three specific allegations made in the termination letter. In this regard, I also note the evidence of Ms Neill (see paragraph 38 above) that the reasons for dismissal were set out in the termination letter and no further reasons are relied upon.
[72] As the Applicant’s conduct is the reason given by the Company for the termination, I have to determine for myself whether the impugned conduct occurred and, if so, whether it amounted to a valid reason for termination of employment. In this regard I respectfully agree with the following observations of the Full Bench in King v Freshmore (Vic) Pty Ltd 74:
“When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.
The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”
[73] In Container Terminals Australia Limited v Toby 75, a Full Bench of the Australian Industrial Relations Commission said: “In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable…”76
[74] Northrop J in Selvachandran v Peteron Plastics Pty Ltd 77 said:
“In its context in s 170DE(1), the adjective "valid" should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, ….”
[75] In Qantas Airways Ltd v Cornwall 78, the Full Court of the Federal Court said:
“The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved.”
[76] In Edwards v Justice Giudice 79, Moore J said:
“The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination.”
[77] In the case before me, there is no contest that the material upon which Linfox based its decision to terminate Mr Stutsel’s employment appeared on his Facebook page. Mr Stutsel’s Facebook account had some 170 other persons with the status of ‘friends’, many of them Linfox employees. The material complained about by Linfox was contained in a series of conversations between Mr Stutsel and others.
The evidence
[78] A thorough examination of the evidence leads me to a number of conclusions which have guided me in making my decision in this matter. Firstly, I accept as truthful the evidence of Mr Stutsel that his Facebook account was set up by his wife and daughter and that he believed that the account had been set on the maximum privacy setting available and that he did nothing to vary that setting. That is, he believed that the comments posted on his page could only be viewed by himself and those persons he had accepted as Facebook friends. I further accept Mr Stutsel’s evidence that he was unaware that he could delete comments from Facebook friends once they had been posted.
[79] I further accept Mr Stutsel’s evidence that comments he posted about terrorism and the death of a terrorist, were an expression of his private views at the time and that he later came to regret the making of some or all of those comments. Whether Mr Stutsel’s contrition in that regard is genuine need not concern me as I consider his comments to be within his right to free speech in such matters even though many, including myself, would find much of the Facebook discourse which is in evidence to be distasteful. It is a bridge too far in my opinion to make a connection between those comments and any personal attack on Mr Assaf. The Applicant’s Facebook page was not a web blog, intended to be on public display. It was not a public forum.
[80] The reference ‘bacon hater’ was obviously directed as a descriptor of Mr Assaf. Such a remark is clearly in poor taste but cannot amount to being a racially derogatory remark intended, or acting to, vilify Mr Assaf on racial grounds. The actual comment could just as easily be used in relation to members of other religious groups and not just Mr Assaf and Muslims. In my considered view, the remark was not intended to be hurtful, even if that was not so. Mr Assaf was entitled to be offended by the comment but I note that he only saw it through the action of Ms Russell. I further note that I have paid no regard to any evidence, submission or material which sought to bring Mr Assaf’s religious piety into issue. I am content to accept Mr Assaf’s self description in such matters.
[81] I note that none of Mr Stutsel’s Facebook friends posted any comment objecting to any of the above material (or indeed to any of the material complained of) and apparently found it unexceptionable. That does not totally excuse it but rather, indicates the nature of the milieu in which the remarks were made. When the Facebook comments are read in sequence and as a whole, the nature of them becomes clearer. In context, there are several participants in each thread of discussion, all of whom appear well versed in what the discussion involves and the personalities involved. The chains of comments have very much the favour of a group of friends letting off steam and trying to outdo one another in being outrageous. Indeed it has much of the favour of a conversation in a pub or cafe, although conducted in an electronic format. Any external reader not familiar with either Linfox or particularly the NDC, would have considerable difficulty in making out what was going on in several instances and would have some difficulty in determining about whom some of the remarks were made.
[82] Some of the material also quite directly relates to Mr Stutsel’s TWU delegate activities and discussions about such matters as the recently finalised enterprise agreement, the use of subcontractors and other in-house matters appear to me to be little different from any discussion between persons who are interested in or involved in such matters. The fact that some of the material is not complimentary towards Linfox managers is unsurprising. This always has been, and always will be the fate of those holding managerial positions.
[83] The comments of a sexual nature made about Ms Russell fall into a different category entirely. She was entitled to be outraged by those comments and to complain about them. However, the problem for Linfox in these proceedings is that the main offending comments about Ms Russell were not made by Mr Stutsel. Having accepted Mr Stutsel’s evidence that he was unaware that he could delete comments once they were made, I cannot find any fault in him in relation to the offending material of a sexual nature about Ms Russell. I accept Linfox’s submission that he could have posted a comment disassociating him from the comments. It was a mistake for him not to do so but the fact remains that he did not make the offending comments. That Linfox saw fit to take action against Mr Stutsel over the Russell comments rather than against their author strikes me as being more than passing strange.
[84] The evidence of Ms Russell is somewhat problematic in my view. I accept that she was probably extremely annoyed by the material concerning herself which she found on Mr Stutsel’s Facebook page. I do not believe and do not accept that she believed that the ursine material ‘articulated in graphic detail what can only be described as my torture, mutilation and death’. Such a statement strains credulity. As I have noted above, that material was an attempt at humour in my view and did not contain any credible threat to Ms Russell’s wellbeing. The material was metaphorical and hyperbolic but certainly not hortatory. It might be, as Mr Baroni described it, ‘disgusting’ but it was in no way threatening. In broad, I agree with the submissions of Mr Fagir on this point, as set out at paragraph 64 above.
[85] Mr Fagir and Mr Stutsel expressed a suspicion that Ms Russell had accessed Mr Stutsel’s Facebook page when he inadvertently left his account open at work. I do not believe this as it is clear from the evidence of Mr Assaf and Ms Neill that both of them were able to view Mr Stutsel’s Facebook page when accessed by Ms Russell. For her part, Ms Russell took some pains to navigate through Mr Stutsel’s Facebook account when she discovered that she could access it. I am curious as to why she would access the account when she was not a Facebook friend. However, it was perfectly natural for her to forensically go through the account when she first discovered unflattering references to herself. Mr Assaf’s outrage was largely the resultant product of Ms Russell’s endeavours.
[86] The evidence of Mr Hurst had not assisted me in the making of my decision and I have disregarded it. The evidence of Ms Neill strikes me as broadly truthful as to her role in the investigation instigated by the complaints of Ms Russell and Mr Assaf.
[87] At the time of Mr Stutsel’s dismissal, Linfox did not have any policy relating to the use of social media by its employees. Indeed, even by the time of the hearing, it still did not have such a policy. The Company relies on its induction training and relevant handbook (see paragraphs 28 and 29 above) to ground its action against Mr Stutsel. In the current electronic age, this is not sufficient and many large companies have published detailed social media policies and taken pains to acquaint their employees with those policies. Linfox did not.
[88] All in all, I find that Mr Stutsel was not guilty of serious misconduct relating to the matters set out in the termination of employment letter. I further find that there was not a valid reason for the termination of his employment, based on my reasoning set out above.
[89] I now turn to the question of whether the dismissal of Mr Stutsel was harsh, unjust or unreasonable. Section 387 of the Act sets out the criteria for considering harshness etc. It provides:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.”
[90] In Byrne v Australian Airlines 80, McHugh and Gummow JJ of the High Court said:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
[91] The question of valid reason is dealt with above. It is apparent from the materials and evidence that Mr Stutsel was notified of the reasons for the termination of his employment. It is further clear on the materials and evidence that he was given an opportunity to respond. Mr Stutsel was allowed to have a support person present with him at his disciplinary hearing. The question of unsatisfactory performance does not arise in these proceedings. The size of the employer’s enterprise is a factor which is likely to have impacted on the procedure followed in effecting Mr Stutsel’s dismissal. On what is before me, I conclude that Linfox is a large operation with access to advice internally on industrial relations matters. This would have impacted significantly on the procedures followed by the Company in effecting the dismissal of Mr Stutsel. All in all, I am satisfied that the termination of Mr Stutsel’s employment was procedurally fair and I so find.
[92] I now come to the question of differential treatments by Linfox of persons who made offensive comments on Mr Stutsel’s Facebook page. Disparity in the treatment of different persons has been dealt with in several decisions of the Tribunal and its predecessor. In Sexton v Pacific National (ACT) Pty Ltd 81, Vice President Lawler said:
“It is settled that the differential treatment of comparable cases can be a relevant matter under s.170CG(3)(e) to consider in determining whether a termination has been “harsh, unjust or unreasonable”. In National Jet Systems Pty Ltd v Mollinger 82 the Full Bench concluded that in the particular factual circumstances it was appropriate for the member of the Commission at first instance to have regard to different treatment afforded to another employee involved in the same incident.83”
[93] There is nothing before me to indicate that persons other than Mr Stutsel who were in the employ of Linfox and made offensive comments on Mr Stutsel’s Facebook page were the subject of any sanction by the Company. This factor has not been determinative in my decision making but has had some influence in my ultimate finding relating to harshness.
[94] Other matters which I have considered relevant in the making of my decision are Mr Stutsel’s extremely good employment record over some 22 years, his age and his employment prospects.
[95] Mr Stutsel would be wise to take note of a comment he posted on his Facebook page on 11 November 2010. That comment read: “Law of Probability - The probability of being watched is directly proportional to the stupidity of your act.” Here is wisdom.
[96] All in all, I have concluded and find that the termination of Mr Stutsel’s employment by Linfox was harsh, unjust and unreasonable.
[97] Section 390 of the Act provides:
“390 When FWA may order remedy for unfair dismissal
(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) FWA may make the order only if the person has made an application under section 394.
(3) FWA must not order the payment of compensation to the person unless:
(a) FWA is satisfied that reinstatement of the person is inappropriate; and
(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.”
[98] In all the circumstances of this case, reinstatement is in my view both practicable and desirable. Mr Stutsel seeks reinstatement and I find that reinstatement is an appropriate remedy. My assessment of Mr Stutsel and his conduct is that he is quite capable of resuming his duties as NDC. He has shown no rancour towards Management and I believe that the employee/employer relationship can be re-established provided that there is goodwill on both sides. I have no doubt in this context that Mr Stutsel is fully aware of the comments on his Facebook page were foolish and he regrets the entire situation. Mr Assaf is now based in Bangkok and there is nothing before me which would indicate that Mr Stutsel and Ms Russell are likely to come into contact with each other to any degree.
[99] Section 391 of the Act provides:
“391 Remedy - reinstatement etc.
Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
Order to maintain continuity
(2) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to maintain the following:
(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer,
or (if subsection (1A) applies) the associated entity.
Order to restore lost pay
(3) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), FWA must take into account:
(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”
[100] In summary, I find that there was no valid reason for the termination of Mr Stutsel’s employment and I further find that his dismissal was harsh, unjust and unreasonable. I find that he should be reinstated to his former position at the NDC with full continuity of employment for all purposes excepting wages from the date of his termination of employment until the date of his reinstatement. That reinstatement should take place on the earliest possible date and in any event from no later than seven days from the date of this decision.
[101] Mr Stutsel did not actively pursue a claim for compensation for lost wages following the termination of his employment. However, in all the circumstances of this case, I find that an order for compensation is required to achieve a just outcome for Mr Stutsel. However, I do not believe Mr Stutsel should be compensated for the entire period following his dismissal on 31 May 2011. Accordingly, I find that Mr Stutsel should be compensated for lost wages at his ordinary rate, as applicable at the time he was dismissed, on and from 1 July 2011 until the date of his reinstatement. The amount comprising compensation for lost wages shall have deducted from it the amount of any remuneration earned by Mr Stutsel from employment or other work during the period between dismissal and the making of my order for reinstatement and any amount of other remuneration earned by him during the period between the making of my order for reinstatement and the actual reinstatement.
[102] In accordance with s.381(2) of the Act, I am further satisfied that each party has been accorded a ‘fair go all round’ in these proceedings.
[103] An order reflecting this decision is in PR517532.
COMMISSIONER
Appearances:
O Fagir for Glen Stutsel.
M Baroni for Linfox Australia Pty Ltd.
Hearing details:
2011.
Sydney:
4, 5, 17 October.
1 Exhibit TWU 1.
2 Transcript PN234.
3 Transcript PN252.
4 Exhibit TWU 2.
5 Transcript PN504.
6 Transcript PN509.
7 Transcript PN538.
8 Transcript PNs563-567.
9 Transcript PN582.
10 Transcript PN583.
11 Transcript PN623.
12 Transcript PN625.
13 Transcript PN630.
14 Transcript PN645.
15 Transcript PN654.
16 Transcript PN655.
17 Transcript PN752.
18 Transcript PN827.
19 Exhibit TWU 3.
20 Exhibit Linfox 2.
21 Transcript PN1224.
22 Transcript PNs1225-1226.
23 Transcript PN1249.
24 Transcript PN1297.
25 Exhibit Linfox 1.
26 See Appendix 20 to Exhibit Linfox 1.
27 See Appendix 24 to Exhibit Linfox 1.
28 Transcript PN1033.
29 Transcript PNs1036-1037.
30 Transcript PN1054.
31 Transcript PN1072.
32 Transcript PN1114.
33 Transcript PN1115.
34 Transcript PN1124.
35 Transcript PN1125.
36 Transcript PN1126.
37 Transcript PN1131.
38 Exhibit Linfox 3.
39 See Appendix 2 to Exhibit Linfox 3.
40 Transcript PN1399.
41 Transcript PN1429.
42 Transcript PN1431.
43 Transcript PN1555.
44 Transcript PN1753.
45 Transcript PN1771.
46 Transcript PN1782.
47 Transcript PN1784.
48 Transcript PN1809.
49 Transcript PN1834.
50 Transcript PN1835.
51 Transcript PN1842.
52 Transcript PN1843.
53 Transcript PN1847.
54 Transcript PN1848.
55 Transcript PNs1853-1854.
56 Transcript PN1856.
57 Transcript PNs1880-1883.
58 Transcript PN1914.
59 Transcript PN1915.
60 Transcript PN1916.
61 Transcript PN1935.
62 Transcript PN1938.
63 Transcript PN1946.
64 Transcript PN1987.
65 Transcript PN1988.
66 Transcript PNs1988 and 1990.
67 Transcript PN1993.
68 Transcript PN2013.
69 Transcript PN2015.
70 Ibid.
71 Transcript PN2062.
72 Transcript PN2066.
73 Transcript PN2075.
74 Print S4213, 17 March 2000.
75 Print S8434, 24 July 2000.
76 Ibid at para 15.
77 (1995) 62 IR 371 at 373.
78 [1998] FCA 865.
79 [1999] FCA 1836.
80 (1995) 185 CLR 410.
82 Giudice J, Polites SDP and Gregor C, 18 March 1999, Print R3130
83 ibid at [25] - [27]. See also Serco Gas Services Pty Ltd v Alkenamde, per Ross VP, Polites SDP and Hingley C, 21 June 1999, Print R6090 at [6]
Printed by authority of the Commonwealth Government Printer
<Price code C, PR517531>