[2013] FWC 9642

FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Cameron Little
v
Credit Corp Group Limited t/as Credit Corp Group
(U2013/11522)

DEPUTY PRESIDENT SAMS

SYDNEY, 10 DECEMBER 2013

Termination of employment - serious misconduct - inappropriate use of social media - conduct not denied - explanation for conduct not plausible - breaches of Company policies and Code of Conduct - training and previous warning - valid reason for dismissal - no remorse or regret - likelihood of conduct recurring - dismissal not ‘harsh, unjust or unreasonable’ - application dismissed.

[1] This decision concerns the dismissal of an employee for the inappropriate use of his personal Facebook account to criticise an organisation with which his employer had professional dealings (Christians Against Poverty (CAP)) and making sexually suggestive comments about a new employee of the Company.

[2] The dismissed employee, Mr Cameron Little (the ‘applicant’) was employed from 10 May 2010 by Credit Corp Group Limited (the ‘Company’ or the ‘respondent’) until he was dismissed on 28 June 2013. The letter terminating the applicant’s employment reads as follows:

[3] On 12 July 2013, the applicant filed an application, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’) seeking reinstatement to his former position. The matter was unable to be settled at conciliation and was remitted to me for arbitration.

[4] At this juncture, I can readily dispose of the prerequisite jurisdictional matters the Commission is required to determine, pursuant to s 396 of the Act in that:

(a) the application was made within the required time period of 21 days as set out in s 394(2);

(b) the applicant was a person protected from unfair dismissal (s 396(b)) in that he:

(c) the applicant’s dismissal was not a case of genuine redundancy (s 396(d)); and

(d) the Small Business Fair Dismissal Code did not apply to the respondent who employs over 600 employees (s 396(c)).

[5] For completeness, the only matter arising as to whether the applicant was unfairly dismissed (s 385) is the question of whether the dismissal was ‘harsh, unjust or unreasonable’. One then travels to s 387 of the Act to find the matters the Commission is required to take into account in deciding unfairness. These are:

EVIDENCE

[6] The following persons provided written and/or oral evidence in the proceeding:

For the applicant

[7] The applicant provided a five point statement in support of his application. It was as follows:

[8] The applicant’s Form F2 application was somewhat more expansive. In it, he explained that he had listed his employment on his Facebook account as ‘Dinosaur Wrangler’ at ‘Jurassic Park’. He said that after he had made the comment on the CAP Facebook page, the moderator of that page went through his personal details and was able to determine that he was an employee of the respondent. The respondent was then contacted. He complained that he had never consented to the respondent releasing, or confirming his personal details to third parties (CAP). He had not been allowed to view the correspondence between the respondent and CAP. He claimed he had never been warned about private comments on social media in the past, except that it was impermissible to misrepresent the Company or act against its best interests. He maintained that his comments about CAP did not fall into either of these categories.

[9] In cross examination, the applicant agreed that he had had access to the respondent’s Employee Handbook and the Employee Code of Conduct. He also agreed that he had attended an induction at the commencement of his employment in 2010 and a ‘Working Together’ module in August 2012. He also agreed that clause 15.2 of his contract of employment set out that the Company’s policies and procedures constitute directions by the respondent.

[10] The applicant acknowledged that he had created his Facebook page and had the ability to access privacy settings for his account. He had made the following comments on the Christians Against Poverty page on 27 June 2013:

and

[11] The applicant also conceded that he created the following post on Facebook on 21 June 2013:

[12] The applicant believed that his Facebook page was private and that he had not identified the respondent as his employer. He acknowledged that the above comments were not a representation of the views of the respondent. However, he had not identified himself as an employee of the respondent, when he made the posts on the CAP Facebook page. He did not believe that his Facebook page was public to all Facebook users. He claimed that he did not know how CAP had accessed his Facebook page, but accepted that they must have. He maintained that his Facebook page was private, but accepted that a document, said to be a printout of his Facebook page, disclosed posts which he had made. In addition, he claimed that he did not understand how Facebook worked.

[13] The applicant said it was not his intention to have a publicly accessible Facebook page, because it would not be in his interests to do so. He accepted that if a person had seen his post on the CAP Facebook page, they could have clicked on his name and viewed his own Facebook profile. However, he understood that Facebook pages set up for businesses could not be used to view his personal information. He now accepted that CAP must have done this and CAP could have reasonably assumed that he worked for Credit Corp. Nevertheless, he said that CAP would have had no way of confirming this, except by the Company itself. He had not been shown any correspondence between CAP and the respondent in relation to this matter, despite having requested it. He restated that the posts he had made reflected his own personal opinions. Moreover, he was on annual leave at the time that he had made them.

[14] The applicant’s attention was drawn to a multiple choice question on the online ‘Working Together’ module. It was as follows:

□ It doesn’t matter, Facebook has nothing to do with work.

□ No it is inappropriate to make negative comments about team mates of the Company online and can have an impact on the employment relationship.

□ Yes, Peter hasn’t disclosed the name of his team mate so no harm done.’

A further slide indicated that the correct answer was the second one. The applicant said that he could not recall completing this particular question, although he accepted that he had completed the module on 2 August 2012. A report based on this module showed that he had scored ‘100’. The applicant explained that it was not possible to move onto the next section of the module without scoring ‘100’ and he had not really paid attention to what he was doing. He had just clicked ‘Next’. Nevertheless, the applicant conceded that this example demonstrated that employees could not express any opinion online, merely because they were not at work. Further, the applicant agreed that his comments could have had an impact on his employment relationship with other employees. He now accepted that the posts he had made in relation to Mr Hoye and on the CAP page had breached the respondent’s policies.

[15] The applicant also acknowledged that he had received ‘Respectful Engagement’ training on 5 December 2011. This training dealt with interactions with ‘Not For Profit’ Financial Counsellors. His view was that CAP was not a charitable organisation, but he did agree that he had dealt with CAP in the course of his work. This included having made no less than 17 phone calls to CAP between May and June 2013.

[16] The applicant conceded that his comments on the CAP Facebook page were very critical of CAP. However, he disagreed that it was inappropriate for him to have made these comments. He had never been warned for expressing an opinion online. Nevertheless, he agreed that he had been issued with an earlier warning on 9 July 2010. It was expressed as follows:

The applicant said that he understood this warning was in relation to his use of work facilities during work time. He distinguished this from the comments he had made on the CAP page, because it had been done in his own time.

[17] The applicant acknowledged that his Facebook friends included other of the respondent’s employees and that they could potentially have seen the posts he made on the CAP page and the one he had made about Mr Hoye. He conceded that even if he had set his Facebook profile to private, these co-workers would have been able to see the post. Even so, the applicant claimed it was ‘just a joke’ - albeit one of a sexual nature. The applicant’s attention was drawn to clause 7.9 of the Employee Handbook. It states as follows:

[18] The applicant agreed that he knew from the Employee Handbook that inappropriate Facebook posts could result in his termination. He also agreed that the Employee Handbook set out that sexual harassment could include suggestive comments and jokes. However, the applicant noted that Mr Hoye was not an employee at the time that he made the Facebook post about him.

For the respondent

Mr Adam Carpenter

[19] Mr Carpenter provided a written statement, but was not required for cross examination. He said that the business of the respondent involved the collection of consumer debt that had been ‘written off’ by the original lender. The business is largely conducted by telephone. The respondent has approximately 600 staff, most of whom are Customer Relationship Managers.

[20] Mr Carpenter explained that CAP was one of a number of third party organisations which assist ‘customers’ of the respondent with their debt obligations by way of working through their debt obligations and negotiating with the respondent. He said the applicant regularly communicated with similar organisations in his capacity as a Customer Relationship Manager. He had been trained in interacting appropriately with customers, third parties and ‘Not For Profit’ organisations. These matters were also addressed in annual refresher training and in regular emails to employees.

[21] Mr Carpenter confirmed that the records of the Company disclosed that the Employee Handbook and the Code of Conduct were on the Company’s intranet and were available to employees at any time. He noted that the applicant had signed an acknowledgment that he had received and read the Code of Conduct on 28 April 2010. He had also completed the ‘Working Together’ module on 2 August 2012 and the ‘Respectful Engagement’ training on 5 December 2011.

[22] Mr Carpenter deposed that Ms Monica Devoud, who managed the respondent’s Complaints Department, had contacted him on 28 June 2013 concerning the applicant’s Facebook activity. Later that day, he and Mr Kriston Wright met with the applicant at 4:30pm. The applicant had a support person with him, Royan Keane. At the beginning of this meeting, the applicant had agreed that he had been issued with the Employee Code of Conduct, the Employee Handbook and that he had completed the ‘Working Together’ module and ‘Respectful Engagement’ training.

[23] Mr Carpenter told the applicant that he had read the posts that he had made on the CAP Facebook page (see para [10]). The applicant accepted that he had made these posts, but added a qualification that he was on annual leave at the time. The applicant conceded that he could see how his posts would have been viewed as inappropriate and that they would not be in accordance with the rules for dealing with Financial Counsellors or the ‘Respectful Engagement’ practices. Nevertheless, he emphasised that they were his personal comments.

[24] Mr Carpenter stated that when it was put to the applicant that his Facebook profile identified him as an employee of the respondent, the applicant had said that he did not have the respondent listed as his employer. However, he acknowledged that the comment made in relation to Mr Hoye would have identified him as an employee of the respondent. The applicant had also agreed that he had other employees of the respondent as ‘friends’ on Facebook. He had accepted that his behaviour was contrary to protecting the Company’s reputation.

[25] Mr Carpenter agreed that the applicant had asked to see the correspondence between CAP and the respondent. He told him that he did not believe that this would be appropriate. In any event, the key concerns in the correspondence had been explained to him.

[26] Mr Carpenter said that he then drew the applicant’s attention to the post he had made on his own profile page on 21 June 2013 mentioning Mr Hoye (see para [11]). He accepted that Mr Hoye had commenced employment with the respondent on 1 July 2013. However, the applicant had agreed that this post did not comply with the Code of Conduct or with the respondent’s policies and procedures in light of the fact that it was in a public forum. However, the applicant had said that it was just a joke, although he could see that it could have been damaging to the Company’s brand.

[27] The applicant had explained that it was not his intention to breach the Code of Conduct and the postings were made in his own free time. He was unsure as to how the security settings on his Facebook account were set. He had not known that people who were not his Facebook friends, could still see these posts. The applicant had said he was disappointed that CAP had engaged in efforts to determine his identity. On reflection, he had accepted that his actions reflected poor judgment, but there had been no intention on his part to damage the Company. He accepted that his behaviour had been unacceptable.

[28] Mr Carpenter gave evidence that after a short break, during which the applicant’s responses were reviewed by himself, Ms Sarah Comarmond, HR Business Partner and Mr Matthew Stokes, Head of Collections, he and Mr Wright met with the applicant again. It was explained to him that his behaviour did not comply with the Code of Conduct and that his actions had damaged the brand and reputation of the Company. The applicant was asked if he had anything further to say. He merely reiterated that the posts were made in his own time and that it was ‘unfair’ that CAP had read his posts in order to discover the fact that he worked for the respondent. Mr Carpenter told him that he had failed to perform his duties diligently, had disregarded Company policy and procedures and that the Company had lost trust and confidence in him. As a result, a decision had been made to terminate the applicant’s employment for serious misconduct.

[29] Mr Carpenter emphasised that he had taken into account a number of factors in coming to this conclusion. These included the fact that the applicant had been trained in the respondent’s policies and procedures, the written warning issued to him in July 2010, the applicant’s failure to appreciate the seriousness of his actions and the likelihood of him engaging in similar conduct in the future.

Mr Kriston Wright

[30] Mr Wright also provided a written statement and was not required for cross examination. He said that at 3:11pm on 28 June 2013, he sent an email to the applicant asking him to attend a meeting and offering him the opportunity to bring a support person. The meeting took place at approximately 4:30pm and the applicant brought Mr Royan Keane as a support person.

[31] Mr Wright did not speak during the meeting. However, he recalled that the applicant had agreed with Mr Carpenter that he had completed the ‘Working Together’ module, had been issued with a copy of the Code of Conduct and had undertaken the ‘Respectful Engagement’ training. Mr Wright said that Mr Carpenter outlined the posts that the applicant had made on CAP’s Facebook page and asked him if he thought that these were appropriate for an employee of the Company to have made. The applicant had replied that the posts were made in his own time and that he was within his rights to make such comments. For him, it was an issue of free speech. He took issue with the ethics and values of CAP.

[32] Mr Carpenter had explained to the applicant that compliance with the Code of Conduct was a condition of employment and that breaches of the Code could lead to disciplinary action, up to and including dismissal. The applicant had replied that he had thought that his Facebook profile was private. He could not keep up with the changes that were made to privacy settings. Mr Carpenter raised the Facebook post that mentioned Mr Hoye (see para [11]). He had asked the applicant if he thought that this post complied with the Code of Conduct. The applicant admitted that it did not. However, he claimed the post was meant to be humorous. He had accepted that it did not comply with the requirement in the Employee Handbook that employees refrain from posting disparaging or harassing comments about other employees. He accepted that it could damage the Company’s brand. However, the applicant would not agree that he had done anything wrong. He believed the comments in relation to Mr Hoye were private.

[33] Mr Wright said that Mr Carpenter had then advised the applicant that the Company was considering terminating his employment for reasons of serious misconduct. They would be taking a recess to consider his responses. After approximately half an hour, the meeting reconvened. Mr Carpenter advised the applicant that his behaviour was contrary to the Code of Conduct and had caused damage to the Company’s brand and reputation. Mr Carpenter asked the applicant if he had anything further to say and he responded that he had not intended to cause harm with his comments. Mr Carpenter then stated that the Company saw no alternative but to terminate the applicant’s employment.

[34] Mr Wright recalled that at some point during the meeting, the applicant had asked if the correspondence between the respondent and CAP could be shown to him. Mr Carpenter had replied that this was a private conversation between Mr Thomas Beregi and CAP, but he would see if he could get him a copy. The applicant had responded that he believed that CAP examining his Facebook profile, was a breach of his privacy.

SUBMISSIONS

For the applicant

[35] The applicant did not provide further written submissions to the five point statement noted above (see para [7]). However, in oral submissions, he put that he had felt that he had been unable to appropriately respond to the allegations of the respondent. The meeting on 28 June 2013 had been deliberately timed to take place at 4:30pm when other employees had already gone home. It was obvious to him that a decision to terminate his employment had already been made.

[36] The applicant submitted that CAP would have only been capable of assuming that he was an employee of the Company from his Facebook profile. The Company had confirmed this and had therefore released his personal details, without his permission. He asserted that the Company did not have the right to disclose to CAP that he was its employee. He accepted that it was likely that CAP knew that he was an employee of the Company, because he had called them many times.

[37] The applicant argued that as an individual he had a right, like others, to have a Facebook account and to express his opinion on the internet in his own time, as long as it did not reflect poorly on the Company. He said that he had understood Company policies in relation to social media and had ensured that he had not listed the Company as his employer on his Facebook profile; rather he had listed a fictional employer. He complained that he still had not viewed the correspondence between CAP and the Company. He felt that he had been terminated as ‘somewhat of a sacrificial determination’ and submitted that a warning would have been more appropriate.

[38] The applicant emphasised that the warning issued to him in 2010 did not involve social media, but rather it involved a private website, run as an anti-abortion page. He understood that he had been warned for wasting time and using Company resources for non work related activity.

[39] Finally, the applicant said that he was not currently working and was in receipt of Centrelink payments. He had recently submitted applications to enrol at various universities. Nevertheless, he sought reinstatement as a remedy for his unfair dismissal.

For the respondent

[40] In written submissions, Mr Motro, Solicitor (having been granted permission to appear) submitted that the dismissal of the applicant had not been ‘harsh, unjust or unreasonable’ within the meaning of the Act.

[41] Mr Motro said that there was a valid reason for the termination of the applicant’s employment (s 387(a)) in that he had been terminated for reasons of serious misconduct. He referred to the meaning of serious misconduct in r 1.07 of the Fair Work Regulations 2009 (the ‘Regulations’), emphasising the non-exclusive definitions of ‘wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment’ and ‘conduct that causes serious and imminent risk to ... the reputation, viability or profitability of the employer’s business’.

[42] Mr Motro submitted that the respondent had considered the posts made on the CAP Facebook page as serious given that:

[43] Mr Motro noted that the applicant maintained that he was entitled to express his opinion outside of work hours. Given this insistence, it was reasonable to assume that if he were to be reinstated, there would be a repeat of his behaviour.

[44] Mr Motro submitted that the applicant’s post on his own Facebook profile in relation to Mr Hoye was serious in that it referred to ‘rape’ and ‘sexual harassment’ of a new employee. The Employee Handbook expressly prohibits sexual harassment in the workplace, which includes ‘suggestive comments or jokes’. The Employee Handbook also deals with social media policy and sets out that ‘making disparaging or harassing comments about co-workers, managers, customers or the Company online’ is prohibited. The post also identified the applicant as an employee of the respondent. The applicant’s behaviour constituted a breach of clause 15.2 of his contract of employment. The fact that the relevant Facebook posts were made out of working hours, on his own personal computer, did not mean that they could not be a valid reason for dismissal; See: Rose v Telstra Corporation Limited 1444/98 N Print Q9292 [1998] AIRC 1592 (‘Rose v Telstra’) and O’Keefe v Williams Muir’s Pty Limited t/as Troy Williams The Good Guys [2011] FWA 5311 (‘O’Keefe v Williams Muirs’).

[45] Mr Motro noted that the applicant had been notified of the reason for his dismissal, being serious misconduct, in the meeting of 28 June 2013 and the letter of termination summarised those reasons (s 387(b)). The applicant had been given an opportunity to respond to the allegations in that meeting, at which the relevant Facebook posts were read out to him (s 387(c)). The applicant had responded that the relevant posts had been made in his own time and were meant to be humorous. The respondent had specifically advised the applicant in the email directing him to the meeting, that he could have a support person present. Mr Keane attended the meeting in this capacity (s 387(d)).

[46] Mr Motro added that the applicant had been dismissed for serious misconduct and that the respondent was not required to have previously warned the applicant in relation to his performance (s 387(e)). However, he noted that the applicant had previously been issued a warning in relation to posting inappropriate comments on a third party’s website (see para [16]).

[47] Mr Motro submitted that the respondent had dedicated Human Resources staff (s 387(g)), but the Commission would consider this as having a neutral effect on the question of whether the applicant had been unfairly dismissed.

[48] Mr Motro said that the applicant had continuously failed to respect the respondent’s policies and procedures. He had previously received a warning for similar conduct. He had demonstrated no remorse or contrition. He did not appreciate that his activity on Facebook would allow other persons to identify him as related to the respondent. The mere fact that the applicant had listed himself as being employed as a ‘Dinosaur Wrangler’ at ‘Jurassic Park’ did not change this. The applicant now conceded that third parties could view his Facebook profile.

[49] Mr Motro noted that the applicant had denied that he had received training in relation to conduct on social networking sites. This was untrue. He had conceded that the policy of the Company referred to ‘representing the company and its best interests. My comments naturally do not fall into this category.’ This assertion should not be taken seriously. Although the applicant claimed the comments in relation to Mr Hoye were meant to be a joke, they were objectively offensive and contrary to the respondent’s policies and procedures. His assertion that the comments were not meant to be associated with the respondent, was difficult to maintain in light of the fact that they were expressed as being made ‘On behalf of all the staff at The Credit Corp Group’.

[50] Mr Motro said that the applicant had not submitted that he lacked the ability to control his privacy settings on his Facebook account or that he not have the ability to understand his privacy settings; See Linfox Australia Pty Ltd v Glen Stutsel [2012] FWAFB 7097 (‘Linfox v Stutsel’). Given the previous warning issued to the applicant, it was reasonable to assume that he had no regard to his privacy settings at all.

[51] Mr Motro submitted that should the Commission find that the applicant had been unfairly dismissed, reinstatement would not be an appropriate remedy, due to the comments made by the applicant, the embarrassment suffered by the business and the applicant’s lack of insight as to his conduct. As the applicant’s conduct was serious, a reduction due to that misconduct should be applied to any compensatory remedy awarded by the Commission.

[52] In oral submissions, Mr Motro submitted that there was no dispute that it was the applicant’s Facebook activity which had resulted in his dismissal. The evidence tendered by the respondent had been largely uncontested. The applicant had been trained in the prohibition on sexual harassment and in relation to dealing with ‘Not For Profit’ Financial Counsellors and using social media. He would have been aware that inappropriate comments made on social media could be grounds for termination.

[53] Mr Motro claimed that the comments for which the applicant had previously been warned were not on a private page, as maintained by the applicant. They were on a public website. The comments made by the applicant on the CAP Facebook page were highly critical and inappropriate given his professional dealings with that group. Further posts on the applicant’s own Facebook profile identified him as an employee of the respondent. The applicant’s comments in relation to Mr Hoye were jokes of a sexual nature and prohibited under the respondent’s policies. The fact that he wanted to joke about sexual harassment was an issue of ongoing concern.

[54] Mr Motro submitted that the applicant had full control over his Facebook account, its privacy settings and the content posted from it. The applicant had not been able to explain why his profile was not private and had acknowledged that other employees of the respondent would have had access to his profile anyway.

[55] Mr Motro distinguished the circumstances here to those in Linfox v Stutsel as follows:

[56] Mr Motro said that the applicant had not explained how he had attempted to mitigate any loss in relation to his termination of employment. The application should be dismissed or, alternatively, no compensatory order should be made.

CONSIDERATION

Statutory provisions and relevant authorities

[57] I return to the relevant statutory provisions governing this matter. S 385(b) deals with a dismissal that is ‘harsh, unjust or unreasonable’. These words have become the cornerstone of the industrial jurisprudence in respect to unfair dismissals. Each of the words has its own discrete meaning, as was said by the High Court in Byrne & Frew v Australian Airlines Ltd [1995] HCA 24 (‘Byrne’), where McHugh and Gummow JJ observed:

Meaning of ‘valid reason’

[58] The meaning of ‘valid reason’ in s 387(a) is drawn from the judgment of Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 (‘Selvachandran’). Although decided under a different statutory scheme, this meaning has been applied by members of the Commission and its predecessors for many years:

[59] Even if I was to find that there was a valid reason for the applicant’s dismissal, that does not necessarily bear upon whether the dismissal was ‘harsh, unreasonable or unjust’. Other factors may come into play which substantiate the later finding. So much so was expressly spelt out recently by the Full Bench of the Commission in B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191, where the majority (Lawler VP and Cribb C) said at para [41]:

Issues of procedural fairness

[60] Subsections (b) - (e) of s 387 of the Act can be broadly characterised as issues relevant to whether a dismissed employee was afforded procedural fairness. Alternatively, the term ‘natural justice’ also springs to mind. It is trite to observe that, even if there was a valid reason for an employee’s dismissal, the dismissal may still be found to be unfair, if the employee was not afforded procedural fairness. This has been a long held industrial principle adopted and applied by this Commission, its predecessors, other Courts, industrial tribunals and the High Court. In the High Court case of Byrne, supra above, their Honours McHugh and Gummow JJ said at p 465:

and at page 468:

[61] To highlight the importance of procedural fairness, I cite two further authorities on the subject in an unfair dismissal case. In Crozier v Palazzo Corporation Pty Limited t/as Noble Storage and Transport (2000) 98 IR 137 (‘Crozier v Palazzo’), a Full Bench of the AIRC said at para [73]:

[62] In Wadey v YMCA Canberra [1996] IRCA 568, Moore J made clear that an employer cannot merely pay ‘lip service’ to giving an employee an opportunity to respond to allegations concerning the employee’s conduct. His Honour said:

[63] That said, procedural fairness steps should be applied in a commonsense and practical way. In Gibson v Bosmac Pty Ltd (1995) 60 IR 1 (‘Gibson’), Wilcox CJ said at 7:

[64] As this is a matter concerning serious misconduct, Mr Motro correctly submitted that it was relevant to refer to the meaning of this expression, as defined in Regulation 1.07 of the Fair Work Regulations 2009:

Presumably, the respondent relies on both sub-clause 2(a) and (b)(ii) above.

[65] Superintending all of the statutory and regulatory requirements in the Commission’s unfair dismissal jurisdiction, is the well known expression of ‘a fair go all round’, which is expressly referred to in s 381(2) of the Act as follows:

[66] Finally, I note that the applicant was unrepresented and his documentary evidence was short on detail. Nevertheless, I am satisfied that he informed the Commission, during the proceeding, of all the matters he wished me to consider in light of his claim that his dismissal was unfair. He was articulate and self-confident and made appropriate admissions. He had clearly thought about what he could advance to best defend his undisputed conduct. I will have more to say about these defences shortly. That said, I approached the applicant’s self-representation conscious of the Commission’s obligations in respect to advising and counselling self-represented litigants; See: Davidson v Aboriginal and Islander Care Agency, (Unreported, AIRC, 12 May 1998) Dec 534/98 N Print Q0784.

Use of social media

[67] It was inevitable with the seismic shift to the phenomenon of social media as a means of widespread instantaneous communication, that it would lead to new issues in the workplace. These include the extent of the use of social media while at work, the content of such communications and whether they be work or non-work related. Employers have had to respond to the new phenomenon with appropriate policies and codes of conduct - just as they had to respond to employees using work provided computers to receive, store or distribute inappropriate or non-work-related material.

[68] There is no doubt that in this case, the respondent has a Code of Conduct dealing with the applicant’s actions. Moreover, the applicant was aware of, and acknowledged the Code and participated, on two occasions, in training on appropriate behaviour in the workplace. In this respect, these circumstances are not unlike those present in O’Keefe v Williams Muirs, where Swan DP said at paras [42]-[44]:

[69] Even if the respondent had no policies or a Code of Conduct directly addressing the applicant’s actions, it would be of no consequence. One hardly needs written policies or codes of conduct to understand and appreciate that, firstly, the kind of sexual comments made about the new employee were grossly offensive and disgusting and were more than likely to cause hurt and humiliation. Secondly, there can be no doubt that the comments made by the applicant about CAP were likely to adversely impact on the respondent’s relationship with that organisation and damage the respondent’s wider reputation.

[70] I hasten to add, the applicant is perfectly entitled to hold views about any organisation and to express such views in the public domain; but he is not entitled to do so in a manner which injures his employer’s business relationship with that organisation. I note that the applicant himself had made 17 calls to CAP between May and June 2013.

[71] In addition to claiming (incorrectly) that he had never been warned about private comments on social media in the past, the applicant also raised in his defence a number of gratuitous, self-serving excuses, that

1. he had ‘masked’ his identity and he had never consented to the respondent releasing or confirming his personal details to third parties (CAP);

2. his Facebook profile was ‘private’;

3. he was entitled to his personal opinions;

4. he had made the comments in his own time outside of work hours;

5. Mr Hoye was not an employee at the time he posted the comment about him;

6. the earlier warning was about use of an internet site during work hours, not comments made outside of work;

7. the meeting with the Company was deliberately timed for 4:30pm when all the other employees had left work.

[72] In my opinion, the applicant has a very warped sense of rationalising his conduct. I will respond to each of these excuses. It is ridiculous to criticise the respondent for not obtaining his consent to confirm his personal details with CAP. His consent, or otherwise, was irrelevant. The respondent was perfectly entitled to make its own independent inquiries without obtaining the applicant’s consent. In any event, I accept that CAP was able to establish his identity and who he worked for, without even asking the respondent.

[73] Secondly, I have trouble accepting that the applicant believed his Facebook page was ‘private’ and he did not understand how Facebook worked. For a young person who seemingly frequently used Facebook, it strikes me as highly implausible that he was incapable of adjusting his privacy settings. In any event, the maintenance of his privacy settings was his responsibility.

[74] Thirdly, I have already said the applicant is perfectly entitled to have his personal opinions, but he is not entitled to disclose them to the ‘world at large’ where to do so would reflect poorly on the Company and/or damage its reputation and viability. If he did not believe his comments about CAP were likely to have these effects, he displayed a poor sense of judgment, at the very least.

[75] Fourthly, the fact the applicant made both Facebook comments in his own time is of no consequence. It was not when the comments were made which is important, but the effect and impact of those comments on the respondent, its other employees and on the new employee. On this subject, I refer to what Ross VP (as he then was) said in Rose v Telstra. At page 9, His Honour observed:

[76] In my judgment, the applicant’s conduct:

(a) seriously damaged the relationship between the employer and employee;

(b) damaged the employer’s interests;

(c) potentially damaged the relationship between the employee and other employees; and

(d) was incompatible with the employee’s duty as an employee.

[77] Fifthly, the applicant argued Mr Hoye was not yet an employee - as if this was somehow a defensible explanation. This is rubbish. The fact Mr Hoye was about to commence employment makes the applicant’s comment even more reprehensible. Moreover, it conveyed lurid sexual suggestions, could be seen by everyone and was purportedly sent on behalf of all staff. It was so grossly offensive, that I am amazed the applicant would also argue it was meant to be a joke. Even though there was no corroborative evidence that Mr Hoye took it as a joke, that is not the point. It was likely to be deeply offensive to the person concerned and to those it was purportedly sent on behalf of.

[78] Sixthly, the applicant sought to make a distinction between an earlier warning for sending inappropriate material during work time and the recent incidents occurring outside of working time. This is a difference without a distinction, but in any event, the earlier warning letter makes plain that it was not limited to when the posting was made, but rather it was because of an inappropriate comment. The respondent was entitled to rely on this earlier warning, although given the seriousness of the more recent Facebook posts, it was not strictly necessary to do so.

[79] Seventhly, the applicant seemed to imply some ulterior motive of the respondent in meeting with him after the other employees had left for the day. Did he really want the embarrassment of his actions and his dismissal being made widely known to all the other employees? In my view, the respondent demonstrated a sensible sensitivity to the matter by not conducting the disciplinary process when other employees were in the workplace.

[80] In summary, the net effect of both of these incidents was, in my view, totally inappropriate and constituted serious misconduct. It was a valid reason for the applicant’s dismissal. Viewed in the context of a previous warning for the same type of conduct, it could hardly be said the applicant was not well and truly on notice that similar conduct in the future would not be tolerated and may result in his dismissal.

[81] In addition, I am satisfied that the applicant’s conduct was such as to fall within a finding of the repudiation of the employment contract by the applicant. In this respect, I rely on the following passage from Blyth Chemicals v Bushnell (1933) 49 CLR 66 at 81:

[82] The concept of repudiation of the employment contract was put in a slightly different way in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285 at 287:

[83] In Concut Pty Ltd v Worrell (2000) 103 IR 160, McHugh J dealt with the ordinary relationship of the employer and employee at common law. His Honour said:

[84] Turning now to the specific provisions of s 387 of the Act, I mention firstly, that I earlier found that the dismissal of the applicant was for a valid reason (s 387(a)). The reason was neither fanciful, capricious or biased.

[85] The applicant was notified of the reason for his dismissal at the meeting on 28 June 2013 (s 387(b)) and given an opportunity to respond to the allegations against him ( s 387(c)). Although there might be some basis for criticising the fact the applicant was advised of the meeting only one hour beforehand and there was a relatively short time in which the respondent considered his explanations before dismissing him, it should not be lost sight of that the facts and circumstances, were uncontroversial. The applicant did not deny the allegations. Indeed, he had offered explanations for his conduct such as were discussed earlier. Importantly, he accepted that his conduct was not in accordance with the respondent’s Code of Conduct and inconsistent and contrary to the training he had been given about such matters.

[86] In addition, the applicant made no protest at the time, that he did not understand the nature of the allegations against him or that he did not have a proper and reasonable opportunity to prepare his defence. Indeed, the applicant appeared to have a well rehearsed explanation for his conduct, which was ultimately unconvincing - that he was entitled to express his personal opinions in his own time. The applicant was offered and took up the opportunity to have a support person present at the meeting (s 387(d)). In any event, I am satisfied the process was conducted in a commonsense and practical way; See: Gibson, supra above.

[87] While the reason for dismissal was unrelated to unsatisfactory performance there was no doubt the applicant had been previously warned about similar behaviour. Moreover, the fact the applicant accepted he had received the Code of Conduct and undergone ‘Working Together’ and ‘Respectful Engagement’ training was warning enough that such conduct could likely result in dismissal. In any event, I struggle with the notion that warnings are necessary for behaviour, which commonsense would tell the ordinary person, was simply inappropriate and unacceptable. The applicant was no ordinary person. He was articulate and thoughtful, and argued his case with vigour and conviction. I simply cannot accept that he was a person who did not know what he was doing or the implications of what he was doing.

[88] I consider the size of the employer’s enterprise (s 387(f)) and its dedicated human resources expertise (s 387(g) ensured the process accorded to the applicant was fair and reasonable, albeit with the caveats referred to in para [85].

[89] Other matters I consider relevant in this case (s 387(h) include firstly, the applicant’s relatively medium term of service of three years. Secondly, there was no evidence the applicant had sought to mitigate his losses. He stated he was now seeking to enrol in University. Thirdly, and perhaps more importantly, the applicant offered no apology or regret for his behaviour. While he was prepared to admit breaches of the Code and the Company’s policies, he was not, in any way remorseful for his conduct. On the contrary, he maintained he was entitled to do what he did and gave unconvincing explanations and excuses for his behaviour; See para [71]. I agree with Mr Motro that his failure to acknowledge the seriousness of his actions, whether deliberate or not, offers the respondent and the Commission little comfort that similar incidents would not occur in the future. This is a telling factor, which in my opinion, weighs against any finding of unfairness and/or reinstatement in this case.

[90] For all the aforementioned reasons, I conclude that the applicant’s dismissal on 28 June 2013 was not ‘harsh, unjust or unreasonable’ within the meaning of s 387 of the Act. This finding is consistent with the principle of a ‘fair go all round’. It follows that the application for an unfair dismissal remedy cannot succeed and this application must be dismissed. I order accordingly, with the order to be issued concurrently with the publication of this decision.

DEPUTY PRESIDENT

Appearances:

Applicant in person.

Mr B Motro, Solicitor for the respondent.

Hearing details:

2013

Sydney:

12 November

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