[Note: refer to the Federal Court decision dated 13 December 2013 [2013] FCA 157 for result of appeal.]

[2012] FWAFB 7097

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Fair Work Act 2009
s.604—Appeal of decision

Linfox Australia Pty Ltd
Glen Stutsel



Appeal against decision - unfair dismissal - serious misconduct - social media - Facebook - reinstatement - order to restore lost pay.

[1] This is an appeal, for which permission is sought, by Linfox Australia Pty Ltd (the Company) pursuant to s.604 of the Fair Work Act 2009 (the Act), against a decision given by Commissioner Roberts on 19 December 2011. 1 In the decision, the Commissioner found that Mr Glen Stutsel (the Applicant) had been unfairly dismissed by the Company, and ordered that he be reinstated in his employment and compensated for part of his lost wages.2

[2] The background to the appeal may be set out briefly as follows:

The decision at first instance

[3] The application before the Commissioner was made pursuant to s.394 of the Act and sought a remedy for unfair dismissal.

[4] Section 385 sets out when a person has been unfairly dismissed. It requires Fair Work Australia (FWA) to be satisfied inter alia that the dismissal was “harsh, unjust or unreasonable”. 3 The criteria for determining whether a dismissal is harsh, unjust or unreasonable are set out in s.387 as follows:

[5] In his decision, the Commissioner provides a detailed summary of the evidence given in the proceedings by the witnesses called by the Applicant (Mr K Hurst, TWU official, and himself) and by the Company (Ms G Neill, Group Manager Workplace Relations, Mr M Assaf, Transport Manager, and Ms N Russell, NSW Resource and Planning Manager). The Commissioner then summarises the written and oral submissions presented by the parties.

[6] In considering the evidence and submissions, the Commissioner noted that the Applicant’s employment was terminated for serious misconduct, on the basis of comments which appeared on his personal Facebook page. The Commissioner indicated that he would confine himself to the three specific allegations made against the Applicant in the termination letter. The letter summarises the reasons for the dismissal as follows:

[7] The Commissioner noted that there was no contest that the material upon which the Company based its decision to terminate the Applicant’s employment appeared on his Facebook page and was contained in a series of conversations between the Applicant and others. The Facebook account had some 170 other persons with the status of “friends”, many of whom are employees of the Company.

[8] The Commissioner accepted the Applicant’s evidence that his Facebook page was set up by his wife and daughter, and that he believed that it had been set up with the highest available privacy settings. The Commissioner also accepted the Applicant’s evidence that he believed that comments posted on his Facebook page could only be viewed by his Facebook friends, and that he was unaware that he could delete comments that other people posted on the page. 4

[9] As the Applicant’s conduct was the reason given by the Company for the dismissal, the Commissioner considered whether the conduct amounted to a valid reason for dismissal (s.387(a)). In so doing the Commissioner examined each of the Facebook comments relied upon to support the allegation of serious misconduct. He made a number of findings on the evidence:

[10] Based on these evidential findings, the Commissioner concluded that:

[11] The Commissioner then considered the other criteria set out in s.387 of the Act in deciding whether the Applicant’s dismissal was harsh, unjust or unreasonable. In this regard, the Commissioner noted the differential treatment of the Applicant as compared with other employees who had made offensive comments on the Applicant’s Facebook page, against whom no action was taken. The Commissioner also took into account the Applicant’s employment record, age, and job prospects (see s.387(h)). 12 The Commissioner rejected the submission that the termination of the Applicant’s employment was procedurally unfair (s.387(b)-(d)).13 Overall the Commissioner found that the dismissal was harsh, unjust and unreasonable.14

[12] In considering the appropriate remedy to be ordered, the Commissioner had regard to ss.390 and 391 of the Act. Section 390 sets out the circumstances in which FWA can order certain remedies for unfair dismissal. Section 390(3)(a) requires that FWA not make an order for compensation unless it is satisfied that reinstatement of the person is inappropriate. Section 391 deals with reinstatement. It provides that:

[13] The Commissioner made the following findings as to the remedy to be ordered:

The appeal

[14] In the appeal, the Company submitted that the Commissioner erred in several respects both in deciding that the Applicant’s dismissal was unfair, and in making the orders for reinstatement and compensation. The Company submitted that in deciding that the dismissal was unfair, the Commissioner relied on irrelevant considerations as mitigating the Applicant’s culpability, gave no or insufficient consideration to relevant facts, placed undue emphasis on a purported right to free speech, and made errors of fact.

[15] In ordering the reinstatement of the Applicant, the Company submitted that the Commissioner failed to take into account material considerations and did not give adequate reasons for his finding that reinstatement was an appropriate remedy. In ordering that the Applicant be partially compensated for lost pay, the Company submitted that the Commissioner failed to take into account that the Applicant had been paid for his notice period and thus delivered the Applicant a “windfall” amount.

Appeal principles

[16] An appeal under s.604 of the Act involves an appeal by way of rehearing, with the powers of the Full Bench being exercisable only if there is error on the part of the primary decision-maker: see Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission15 The majority of the High Court in that case explained in the following passage how error may be identified where a discretionary decision is involved:

[17] An appeal under s.604 of the Act may only be pursued with the permission of FWA. This would normally require an appellant to demonstrate an arguable case of appealable error and to refer to other considerations which would justify the granting of permission to appeal. Although s.604(2) requires FWA to grant permission to appeal if it is satisfied that it is in the public interest to do so, there is a note following the subsection to the effect that this does not apply in relation to an application to appeal from an unfair dismissal decision (see s.400). The effect of s.400 of the Act is that the general approach to dealing with appeals is varied in two significant ways in relation to appeals from unfair dismissal decisions. Firstly, in regard to the granting of permission to appeal, this may only be granted where FWA considers it is in the public interest to do so (s.400(1)). Secondly, where an appeal is based on error of fact, the appeal can only be made on the ground that the decision involved a significant error of fact (s.400(2)).

Consideration of the issues

[18] The main issues raised in the appeal relate to:

[19] The Company submitted that significant errors of fact and law were made by the Commissioner in the determination of these issues. This warranted the Full Bench granting permission to appeal and setting aside the orders made by the Commissioner. It was also submitted that permission to appeal should be granted because the intersection of social networking sites and employment obligations directly arises for consideration in the appeal. It was said that there is a very real public interest in having the extent to which an employee’s asserted right to freedom of speech can be called in aid when social networking sites have been used to vilify fellow employees.

[20] It was submitted by the Applicant that permission to appeal should be refused because the Company has not properly attempted to demonstrate appealable error but has simply sought to have the Full Bench re-decide the case for itself, based to a large degree on submissions that were never made to the Commissioner. However it was acknowledged by the Applicant in his submissions that the use of social media by employees is a contentious, complex and novel issue and it is not surprising that employees have little understanding of permissible conduct in this area.

[21] In the circumstances of this matter, and having regard to the issues raised about the use of social networking sites, we have decided to grant permission to appeal. We now turn to deal with the main issues in the appeal.

(i) Valid reason for termination

[22] The Company submitted that the Commissioner’s finding that the Applicant was not guilty of serious misconduct was not open on the evidence before him. It was said that the Applicant had engaged in serious misconduct by his use of the social networking site, Facebook, to denigrate fellow employees. The conduct included posting vile comments which were threatening, offensive, insulting, sexist and racist. These postings were in the public domain and could be viewed by a wide audience, despite what might have been thought by the Applicant about the privacy settings on his Facebook page.

[23] In the course of the proceedings, we were taken to decisions of Employment Tribunals in other jurisdictions relating to social networking sites. 16 We were also taken to the following description of Facebook given by Brown J in the Ontario Supreme Court of Justice:

[24] The conduct that led to the termination of the Applicant’s employment consisted of the posting on his Facebook page of offensive, derogatory and discriminatory comments and statements about two of his managers. As set out earlier, the Commissioner examined the evidence as to the various postings on the Facebook page and made findings in relation to them. The Commissioner referred to some of the comments made by the Applicant as being “distasteful”, “uncomplimentary” and “disgusting” and noted that the Applicant had later come to regret making the comments. The comments of a sexual nature on the Facebook page were “outrageous”, however the Commissioner noted that these comments were not made by the Applicant but by one of his Facebook “friends” in the course of a conversation.

[25] The posting of derogatory, offensive and discriminatory statements or comments about managers or other employees on Facebook might provide a valid reason for termination of employment. In each case, the enquiry will be as to the nature of the comments and statements made and the width of their publication. 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. 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.

[26] In the present case, the series of Facebook conversations in which the comments were made were described by the Commissioner as having the flavour of a conversation in a pub or cafe, although conducted in electronic form. We do not agree altogether with this characterisation of the comments. The fact that the conversations were conducted in electronic form and on Facebook gave the comments a different characteristic and a potentially wider circulation than a pub discussion. Even if the comments were only accessible by the 170 Facebook “friends” of the Applicant, this was a wide audience and one which included employees of the Company. Further the nature of Facebook (and other such electronic communication on the internet) means that the comments might easily be forwarded on to others, widening the audience for their publication. Unlike conversations in a pub or cafe, the Facebook conversations leave a permanent written record of statements and comments made by the participants, which can be read at any time into the future until they are taken down by the page owner. Employees should therefore exercise considerable care in using social networking sites in making comments or conducting conversations about their managers and fellow employees.

[27] In the present matter the Commissioner considered that the statements and comments made by the Applicant were distasteful. However when viewed in the context of the Facebook conversations he considered that they were not of such a nature as to warrant dismissal for serious misconduct, or even as to constitute a valid reason for termination. 18 Some of the comments were so exaggerated or stupid as not to amount to any credible threat against the managers. Other comments were not of such a serious nature as was contended by the Company in the proceedings before the Commissioner and on appeal. Furthermore, some of the comments were not made by the Applicant but by one of his Facebook friends.

[28] We have carefully considered the evidence and material before the Commissioner and the submissions on appeal. We consider that the conclusion reached by the Commissioner was reasonably open to him in the circumstances of the case and having regard to the context in which the conduct occurred and an overall assessment of the gravity of the conduct. It has not been shown that the Commissioner made any error of the kind referred to in House v The King in the determination of this part of the matter. 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.

[29] Even if it was to be found that there was a valid reason for the termination of the Applicant’s employment, there are other factors to be considered in making a determination as to whether the termination was harsh, unjust or unreasonable. We now turn to these.

(ii) Was the termination “harsh, unjust or unreasonable”?

[30] The Commissioner considered the criteria set out in s.387 of the Act in reaching a conclusion as to whether the dismissal was harsh, unjust or unreasonable.

[31] The Commissioner found that the dismissal was not procedurally unfair, as the Applicant was notified of the reasons, given an opportunity to respond and allowed to have a support person to assist him at the disciplinary hearing (s.387(b), (c) and (d)). Further the Company was a large operation with access to advice in industrial relations matters (s.387(e)).

[32] The Commissioner took into account a range of “other matters” (see s.387(h)) in concluding that the dismissal was harsh, unjust and unreasonable. These included the differential treatment by the Company of the other employees who made comments on the Applicant’s Facebook page. In this regard the Commissioner noted that none of the other employees who made offensive comments on the Facebook page were the subject of any sanction by the Company. 19 The Commissioner also took into account the Applicant’s “extremely good employment record over some 22 years, his age and his employment prospects”.20

[33] In our view, the abovementioned and other considerations referred to by the Commissioner in his decision provided an appropriate basis for concluding that the dismissal was harsh, unjust or unreasonable. This would be so even if it was found that the postings on the Applicant’s Facebook page provided a valid reason for dismissal. In particular, we consider that the following matters support this conclusion:

[34] It is apparent from the recital of these matters that the findings of the Commissioner as to the Applicant’s understanding about the use of Facebook were an important part of the circumstances taken into account in concluding that the dismissal was unfair. It is also apparent that, with increased use and understanding about Facebook in the community and the adoption by more employers of social networking policies, some of these factors may be given less weight in future cases. The claim of ignorance on the part of an older worker, who has enthusiastically embraced the new social networking media but without fully understanding the implications of its use, might be viewed differently in the future. However in the present case the Commissioner accepted the Applicant’s evidence as to his limited understanding about Facebook communications. We have not been persuaded, having regard to the evidence and submissions presented, that such a finding was not reasonably open.

[35] The postings on his Facebook page by the Applicant and others were appropriately a matter for concern and censure. The comments were childish and objectionable, and reflect poorly on those who participated in the conversations complained about. However, when the statements and comments posted on the Facebook page were objectively considered in their proper context they were not of such a serious or extreme nature as would justify dismissal for serious misconduct. Further there were other considerations which, when taken into account in the circumstances of the matter before the Commissioner, led to the conclusion that the dismissal of the Applicant on the basis of serious misconduct was unfair.

[36] Overall, we are not persuaded that there were errors of fact or law in the Commissioner’s determination that the Applicant had been unfairly dismissed. Although the conduct of the Applicant in posting derogatory and offensive remarks about two of his managers on his Facebook page was inappropriate, there were a range of other considerations in the present matter which meant that the termination of his employment was unfair.

(iii) Was the remedy appropriate?

[37] The Commissioner decided that the Applicant should be reinstated and be provided with part compensation for lost wages.

[38] In the appeal, the Company submitted that the Commissioner erred in his consideration as to the appropriateness of reinstatement. This was because the Commissioner failed to grasp the seriousness of the Applicant’s misconduct and to consider the impact of reinstatement for the Company.

[39] We have already dealt with the issues relating to the seriousness of the Applicant’s conduct. It has not been shown that the Commissioner did not give appropriate weight to what he considered to be the seriousness of the Applicant’s conduct in his consideration of the appropriateness of reinstatement.

[40] Further we note that the Commissioner did take into consideration the impact of reinstatement on the Company. The Commissioner noted that one of the managers was now working overseas, and that it was unlikely that the other manager and the Applicant would come into contact with each other to any degree. It has not been shown that these findings were incorrect. In any event, in light of the Commissioner’s finding that the Applicant has shown no rancour towards management and recognises the foolishness of his conduct, there might be little basis for concern if any such contact with the manager did occur.

[41] It was also submitted by the Company that the Applicant’s failure to provide truthful answers during the investigation process meant that the Company had no trust or confidence in him. It was said that this should have been considered by the Commissioner in his reasons as to whether reinstatement was appropriate. In this regard, we note that what was submitted to the Commissioner was that the Applicant was first asked by the Group Manager for Workplace Relations, in a general way, about Facebook comments made some six months earlier, and he denied making them. However when he was shown printouts of the specific statements, he conceded he made them. 22 We do not consider that this conduct demonstrated such a breakdown in the relationship between employer and employee as to make reinstatement not possible. The decision reached by the Commissioner on reinstatement cannot be challenged on the basis that he failed to make specific mention in his reasons of an argument of limited significance. The Commissioner considered a range of matters in determining that reinstatement was both practicable and desirable in the circumstances of the case. He clearly did not consider that there had been any such conduct on the part of the Applicant which was so destructive of the employment relationship as to make reinstatement inappropriate.

[42] It was also submitted by the Company that the Commissioner should not have ordered that the Applicant be compensated for lost wages in circumstances where no such claim was being pressed on his behalf. However it was open to the Commissioner pursuant to s.591(3) to make such an order where he considered it necessary “to achieve a just outcome” for the Applicant. 23 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.


[43] For the above reasons, we have decided to dismiss the appeal. It has not been shown that there is any error of such significance in the Commissioner’s decision as would warrant interference by an appeal bench. The Commissioner had to consider whether the posting of inappropriate comments about managers on Facebook was a valid reason for the dismissal of an employee. In the somewhat special circumstances of the present matter, and having regard in particular to the nature of the comments made, the limited understanding of the employee as to the privacy of Facebook communications and the employee’s long and satisfactory employment record, the Commissioner decided that the dismissal was harsh, unjust or unreasonable and ordered reinstatement and payment of lost wages. Having regard to the evidence and submissions before him, and having considered all that has been put in the appeal proceedings, we consider that the decision was reasonably open to the Commissioner and is not attended with any error of the kind referred to in House v The King.



A Moses Senior Counsel and J Murphy of counsel for Linfox Australia Pty Ltd.

A Hatcher Senior Counsel and T Warnes and O Fagir of the TWU for Glen Stutsel.

Hearing details:



December 22 (hearing on stay).



March 22, May 31.

 1   [2011] FWA 8444.

 2   PR517532.

 3   s.385(b).

 4   [2011] FWA 8444 at [78].

 5   ibid at [79].

 6   ibid at [80].

 7   ibid at [81].

 8   ibid at [82].

 9   ibid at [83].

 10   ibid at [84].

 11   ibid at [87].

 12   ibid at [93]-[94].

 13   ibid at [91].

 14   ibid at [96].

 15   (2000) 203 CLR 194 at 205.

 16   Crisp v Apple Retail (UK) Ltd (United Kingdom Employment Tribunal, Case Number 1500258/2011, 5 August 2011); Preece v JD Wetherspoons Plc (United Kingdom Employment Tribunal, Case Number 2104806/10, 18 January 2011).

 17   Leduc v Roman (2009) 308 DLR (4th) 353, (2009) 73 CPC (6th) 323, [2009] Can LII 6838.

 18   [2011] FWA 8444 at [88].

 19   ibid at [92]-[93].

 20   ibid at [94].

 21   ibid at [98].

 22   Transcript, 5 October 2011, PN2076-2082.

 23   [2011] FWA 8444 at [101].

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