DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul Waddy
v
Ability Centre Australasia Ltd
(U2021/1108)

Application for an unfair dismissal remedy.

1 Introduction

[1] This decision concerns an application made by Mr Paul Waddy (the Applicant) under s 394 of the Fair Work Act 2009 (Cth) (Act) for an unfair dismissal remedy.

[2] Ability Centre Australasia Ltd (the Respondent) dismissed the Applicant, its former General Hand, for his failure to comply with its Social Media Policy and Code of Conduct (Code). Following a complaint from a member of the public, the Respondent was apprised of comments the Applicant had made in Facebook posts. It viewed the posts, noted its name was referred to on his Facebook profile page, listened to the Applicant’s explanations for the posts and thereafter formed the view that the Applicant’s actions had caused a serious and imminent risk to the reputation, viability and profitability of the organisation.

[3] The Respondent is a not-for-profit organisation established in 1951 to provide services for people with cerebral palsy. As of 2021, the Respondent provided support and services to 2100 customers living with cerebral palsy, autism and other physical and intellectual disabilities.

[4] Until the complaint was received, the Respondent was unaware of the Applicant’s Facebook posts. On the whole, it seemed that the Respondent was satisfied with the Applicant’s work. On receiving the complaint, Mr Cutri, the Chief Financial Officer and Company Secretary of the Respondent, viewed the content of the Facebook posts. There were six posts. Two were dated 3 October 2020, and the remainder were dated 24 October 2020, 5 November 2020, 9 November 2020 and 31 December 2020. The Facebook posts read:

Fuck off traditional owners. We are Australian, we are one. You are the racist scum. You never had a football, you never cultivated land, you never had towns or permanent buildings, you never had TV and you never had social security.

You claim a 60,000 year history and you did what?

Now let’s just watch the footy.

Oh Leigh Sales, you ABC slut whore, the whole world is not celebrating the passing of the Trump era. You, the ABC, and all of you media slut whores do not deserve to draw breath. You had the power and you used it to promote division, well done. No thinking person trusts the media any longer thanks to you and your slut/whores compatriots. Feel proud when you explain your actions to you children and grandchildren.

Stalin, Hitler, Mao, Castro and other prominent lefties have used the slut/whores like yourself to further their careers, slaughtering millio…

Flash your tits bimbo, flash it all, I like them, you have made them public property.

Only Aboriginal nurses and doctors for Aboriginals. Problem fixed. 60,000 years on this island, you must have a hugely advanced health care system.

Play the race card and suffer. Suckers.

The very same people will tell you how they have inhabited this country for 60,000 years, how did they survive? Certainly not by any form of agricultural management. Hunter gatherers, destined for extinction, until Anglo-Saxons arrived to save them. Where is their gratitude?

Now no woman would ever be that bitchy, and no family court judge would ever believe it, and males commit suicide at 4 times the rate of females because they are weak as piss, and women can do all the heavy lifting and work full time without dumb entitled males which is why they EARN LESS ON THE SAME HOURLY PAY RATE. Poor little princesses never learned to count  1

[5] In short, I have concluded that the dismissal of the Applicant by the Respondent was not harsh, unjust or unreasonable, and therefore the application is dismissed. These are my reasons for so concluding.

2 Background

[6] The Applicant commenced employment with the Respondent on 2 December 2020. He worked full-time and received an annual income of approximately $52,000.00. At hearing, oral evidence suggested that prior to January 2021, the Applicant had been employed on a series of fixed term contracts of short duration. However, no objection was raised concerning the minimum employment period.

[7] The Applicant’s employment contract, under the section titled ‘Responsibilities’, set out:

…In addition, you are required to comply with the Organisation’s Policies, Procedures, Values and Code of Conduct, as amended from time to time (which are not incorporated into this contract of employment). These provide information on your employment and benefits not dealt with in this contract. This contract of employment will prevail over any inconsistencies with Policy. You are responsible for familiarising yourself and complying with all relevant policies and procedures during your employment, a breach of which may result in disciplinary action, up to and including termination of employment. These can be viewed on the Organisation’s intranet or by contacting your Line Manager or People & Culture.

[8] The employment contract detailed the requirement to comply with the Respondent’s policies and Code. The Code set out the Respondent’s commitment of ensuring that all employees, volunteers and governing body members act ethically, responsibly and in the best interests of the organisation and the customer. The Code outlined that the Respondent’s values were the foundation upon which it was built, and those values included, amongst others, ‘respect, integrity’ and to be ‘accountable’. Regarding employee behaviour, the Code provided:

Ability Centre’s employees are at all times required to act and behave in a manner consistent with our values. Employees are responsible for their own behaviour and obligated to comply with all relevant laws, the provisions of this policy and associated policies and procedures. This policy is a lawful direction relating to the organisation’s business and the way in which employees should behave.

Additionally, all Employees must comply with their employment contract, terms and conditions of employment, and all of Ability Centre’s polices and procedures.

Where Employee conduct does not meet the standards of the Code of Conduct set out in this policy and associated procedures, appropriate action will be taken in accordance with the Ability Centre’s Performance Management Policy which may include termination of employment. 2

[9] Relevant to this matter were aspects of the Respondent’s Social Media Policy:

Summary of Policy

This policy has been developed to outline how Ability Centre’s online social media profiles will be managed.

The policy is also aimed at ensuring staff of Ability Centre understand their rights and responsibilities when participating on such sites.

The Policy does not apply to staff’s personal use of social media, where the staff member makes not reference to Ability Centre and absolutely no inference could be made that the staff member is associated with Ability Centre.

Introduction

The purpose of this policy is twofold:

1. Detail who may post on behalf of Ability Centre using the organisation’s online social media profiles and how inappropriate posts will be moderated; and

2. Ensure that staff understand their obligations under the Code of Conduct (Policy 183) when using social media, such as Facebook, twitter and blogs.

This policy is for the mutual protection of Ability Centre, consumers and staff, it is not intended to prevent, discourage or unduly limit staff’s expression of personal opinion or online activities…

Staff posting to social media

Ability Centre supports staffs’ personal use of social media, where the staff member does not make comments that are, or are perceived to be made on behalf of Ability Centre.

Staff should:

● Be mindful that their behaviour is still bound by Ability Centre’s Code of Conduct (Policy 182);
● Not make comments that are obscene, defamatory, threatening, harassing, discriminatory or hateful to or about your work or another person or entity related to your work; and
● Not make opinions or comments that may be perceived to be representative of the opinion of Ability Centre… 3

[10] On 15 January 2019, the Respondent received a complaint from a member of the public through its email system. 4 The complainant advised the Respondent about the nature and contents of various posts on Facebook attributed to the Applicant.5 It was Mr Cutri’s evidence that the complainant advised:

a) that the Applicant’s profile page on Facebook identified his employer as the ‘Ability Centre’ in Perth;

b) the posts were extremely offensive such that they had severely damaged the complainant’s confidence and trust in the Respondent as an organisation, because it had a person working with the Respondent who would publish such material; and

c) they would not be supporting the Respondent for employing someone airing these views on Facebook. 6

[11] Mr Cutri said that the posts were concerning to him. Having sighted the Applicant’s Facebook profile, which identified the Applicant as ‘General Hand at Ability Centre’, 7 he arranged for the Applicant to attend a meeting at the Respondent’s premises on 20 January 2021. Ms Janet Catherwood, People and Performance Lead, also attended.8

[12] Mr Cutri explained that at the meeting on 20 January 2021 he informed the Applicant:

a) there was a complaint about his Facebook posts and there was a connection with Respondent on the Applicant’s Facebook page;

b) that he was very concerned about the nature and contents of the posts and needed to obtain his side of the story; and

c) that the Respondent would, as a result, stand down the Applicant on full pay so that he could consider the nature and content of his Facebook posts and provide his response. 9

[13] At the meeting, the Applicant was given a letter of 20 January 2021, which set out two allegations:

1. On Friday, 15 January 2021, Ability Centre received a formal complaint from a member of the public in relation to a number of inappropriate comments posted by you to your personal Facebook page, which has potentially resulted in significant reputational damage to Ability Centre.
2. Your personal Facebook account, which clearly states that you are employed by Ability Centre, contains numerous posts by you which are of a discriminatory, sexist and/or racist nature and which may be perceived to be representative of the opinion and Values of Ability Centre.

The above allegations are very serious and if proven, are deemed to be a serious breach of Ability Centre’s Code of Conduct, our Values, our Social Media Policy and the professional and ethical standards required as an employee Ability Centre.

[14] Mr Cutri explained that the Applicant responded to the allegations by providing a letter of 25 January 2021. Mr Cutri expressed that having viewed the Facebook posts, he had determined that the material in the Applicant’s posts was unacceptable.

[15] He expressed that he was very disappointed when the Applicant’s letter sought to explain why his posts were effectively alright. Mr Cutri said that whilst the Applicant had referred to removing the reference to the Respondent on his Facebook profile, the letter gave no indication that the Applicant considered there was anything wrong with his posts, and no commitment was made to cease making such posts. 10 The following passages are relevant excerpts from the letter:

Re the allegations levelled against me in your letter 20 January 2021. I refute in the strongest language possible any accusation that I am either racist or sexist. This may help to explain my astonishment when you levelled this accusation against me.

I am fervently against any form of discrimination, and have been offended by this accusation, I write on Facebook as a commentator on these, and other matters regularly, I comment on them, I seldom initiate them. A current topic I shall use as an example, even though I have held back due to the current pressure I am under….

This article refers to Kamala Harris, in both gender terms and race terms, by singling these attributes out, the article is both sexist and racist. That is the way I see it.

I understand my writing style may not be to everybody’s taste, I do not set out to offend people, but I am far from the first person to employ a sensationalist writing style…

Facebook and similar media platforms have onboard protocols of regulating content, Twitter recently suspended the account of one quite high-profile contributor. In all my time commenting on facebook I have never been suspended nor have I had any article removed, perhaps the complainant was not aware of this avenue of redress? If I am made aware of any particular comment that I have made that has caused this distress, I will endeavour to explain myself and perhaps ally these concerns.

I understand your main concern is that my media page had Ability Centre as my employer displayed, and that this could be interpreted as my employer supporting my comments. I have removed this reference, and sincerely apologise for any hurt this may have caused. 11

[16] A further meeting with the Applicant was initially set down for 27 January 2021, but was postponed and rescheduled for 29 January 2021. Mr Cutri said that he asked the Applicant whether he wanted a support person present and offered to postpone the meeting if necessary. Mr Cutri said that the Applicant declined the offer. 12

[17] Mr Cutri detailed that during the meeting on 29 January 2021, he told the Applicant that removing his link to the Respondent on his Facebook profile was not enough. 13 He went on to say that he told the Applicant that the posts he had read were unacceptable and caused a serious and imminent risk to the reputation, viability, or profitability of the business of the Respondent.14 Mr Cutri’s evidence was that the Applicant responded, noting he was entitled to express the opinions in the way he did on Facebook and stated he would not stop doing so. Mr Cutri recalled that the Applicant stated that his Facebook comments were ‘open to people’s interpretation’.

[18] Due to the nature of the Applicant’s role, including the requirement to regularly be on call after usual business hours, to work unsupervised and to be in contact with customers and staff, Mr Cutri said that the Respondent’s main concern was that if the Applicant’s views were conveyed to customers, their families or other staff members, this would create serious risk for the Respondent. Mr Cutri said he also formed the view that the continuation of the Applicant’s employment was untenable because the Applicant had confirmed that he would not change his posts or the nature of his posts. 15 Whilst dismissed for serious misconduct and therefore not entitled to payment in lieu of notice, the Respondent nevertheless paid the Applicant two weeks’ pay.16

3 Consideration

[19] There is no jurisdictional barrier to this unfair dismissal application being considered and determined by the Commission. It is not in contest, and I am satisfied on the evidence before me, that the Applicant was dismissed, he had made his application in time, 17 he was a person protected from unfair dismissal,18 the Respondent was not a small business employer, and the case was not one of genuine redundancy.19

3.1 Was the dismissal harsh, unjust or unreasonable?

[20] The conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd; Frew v Australian Airlines Ltd by McHugh and Gummow JJ as follows:

.... 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. 20

[21] When determining whether an applicant’s dismissal was ‘harsh, unjust or unreasonable’, s 387 of the Act contemplates an overall assessment as to the nature of the dismissal by reference to certain factors. Those factors include:

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 the FWC considers relevant.

[22] Therefore, it is convenient to use the various factors of s 387, with reference to the relevant circumstances, to outline my consideration of the matter.

3.2 Valid reason for the dismissal

[23] When determining if a dismissal is unfair, the Commission must take into account whether there was a valid reason for dismissal relating to the employee’s capacity or conduct. 21

[24] The reasons considered are the employer’s ‘reason(s)’. 22 The Full Bench in B, C, and D v Australia Postal Corporation t/as Australia Post (Australian Postal Corporation) stated:

[34]... In a misconduct case, the Commission is concerned with whether the misconduct in fact occurred, not with whether the employer has reasonable grounds to believe that it occurred (eg. Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, Sherman v Peabody Coal Ltd (1998) 88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1).

[35] Subject to that, as indicated by Northrop J in Selvachandran, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer, that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a valid reason “should not impose a severe barrier to the right of an employer to dismiss an employee”.

[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal. 23

[25] In summary, where the reason for termination of employment relates to an employee’s capacity or conduct, it is not the Commission’s function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the Commission. It is rather for the Commission to assess whether the employer had a valid reason connected with the employee’s capacity or conduct. 24

[26] In the context of the present case, whether the reason for dismissal was sound, defensible or well-founded depends in part on the Respondent’s Social Media Policy, the Applicant’s contractual obligations, his general duties as an employee, and whether the Respondent was entitled to give the direction that it did.

[27] The Applicant’s employment contract was unequivocal in its terms, providing that the Applicant was required to comply with the Organisation’s Policies, Procedures, Values and Code, as amended from time to time. Further, the employment contract placed upon the Applicant a responsibility to familiarise himself with the relevant policies, informed where such documents could be accessed, and advised what might happen should the Applicant breach the policies.

[28] While the Applicant gave evidence that he, like many people, did not read the fine print of the employment contract, it was not disputed that the employment contract set out the Applicant’s obligations.

[29] An employer clearly has authority to give directions and expect them to be obeyed, subject to such directions being lawful and reasonable. 25 In R v Darling Island Stevedoring and Lighterage Co Ltd; Ex part Halliday,26 (Darling Island Stevedoring) it was held:

If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of services and are reasonable.

[30] The Full Bench in Briggs v AWH 27 stated that the determination of whether an employer’s direction was a reasonable one did not involve an abstract or unconfined assessment as to the justice or merit of the direction. The employer, therefore, is not required to demonstrate that the ‘direction issued was the preferable or most appropriate course of action, or in accordance with “best practice”, or in the best interests of the parties’.28 Adopting the approach identified in Darling Island Stevedoring, the Full Bench cited Dixon J, quoting:

But what is reasonable is not to be determined, so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship, supply considerations by which the determination of what is reasonable must be controlled. 29

[31] It is well accepted that behaviour outside working hours may have an impact on employment ‘to the extent that it can be said to breach an express term of [an employee’s] contract of employment’. 30

[32] Turning to the issue of Facebook posts, it was observed by the Commissioner in Fitzgerald v Dianna Smith T/A Escape Hair Design, 31 that while initially undertaken outside working hours, a Facebook post does not stop once work recommences. It remains on Facebook until removed, for anyone with permission to access the site to see. Therefore, a Facebook posting comes within the scope of a Rose v Telstra Corporation Limited32 (Rose v Telstra) consideration, but may go further. It would therefore be foolish of employees to think they may say as they wish on their Facebook page with total immunity from any consequences.

[33] If an employee’s alleged misconduct occurred outside of work, it is the usual course, albeit not referred to by the Respondent, to identify the principles defining the extent to which the employer is entitled to regulate, and take disciplinary action in relation to, ‘out of hours’ conduct.

[34] Those principles can be found in the aforementioned decision of Rose v Telstra in the following terms:

It is clear that in certain circumstances an employee's employment may be validly terminated because of out of hours conduct. But such circumstances are limited,:

•  the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or

•  the conduct damages the employer's interests; or

•  the conduct is incompatible with the employee's duty as an employee.

In essence the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee.

Absent such considerations an employer has no right to control or regulate an employee's out of hours conduct. In this regard I agree with the following observation of Finn J in McManus v Scott-Charlton:

“I am mindful of the caution that should be exercised when any extension is made to the supervision allowed an employer over the private activities of an employee. It needs to be carefully contained and fully justified.”(citation omitted)

[35] It follows that there will not usually be a proper basis to find that there is a valid reason for dismissal for ‘out of hours’ conduct which does not fall within the circumstances described in Rose v Telstra. 33 In Starr v Department of Human Services,34 Hatcher VP stated the following:

if an employer dismisses an employee for a breach of an employment policy which purports to regulate the employee’s private conduct, there will not usually be a valid reason for the dismissal unless the employee’s conduct falls with the Rose v Telstra circumstances.

[36] In all of the circumstances, I am satisfied that the Social Media Policy provided lawful and reasonable instruction to the Applicant. Understandably, considering the law in this area, the Policy’s scope did not overreach. It sought only to regulate the social media use of its employees to the extent where employees made reference to the Respondent, or by inference, the staff member could be seen to be associated with the Respondent.

[37] The Respondent had articulated reasoned justification for the purpose of the Social Media Policy. Namely, the mutual protection of the Respondent, its consumers and staff. It expressed that the Policy did not intend to prevent, discourage or unduly limit staff’s express or personal opinion. However, it rightly, in my view, cautioned that staff should be mindful that their behaviour is still bound by Respondent’s Code and not to make opinions or comments that may be perceived to be representative of the opinion of the Respondent.

[38] In this case, I am satisfied that the Applicant made the Facebook postings referred to at paragraph [4] of this decision. Further, it is open to find, based on the Applicant’s evidence, that he did at the relevant time, identify on his Facebook profile page that he was an employee of the Respondent. I am also satisfied that the Applicant’s Facebook profile page and postings could be seen by general members of the public who had access to Facebook.

[39] I do not consider that the Applicant was unfamiliar with his obligations under the Social Medial Policy, Code, or contract of employment. His argument regarding having not read the ‘fine print’ of such documents does not hold weight. Clear direction was provided regarding his obligations and where to access such documents.

[40] The Applicant made submissions to the effect that whether offense was taken was dependent on whether he intended for the Facebook postings to be offensive, expressing that if he did not intend them to be offensive then no offence should be taken. The Applicant also noted that having done some reading in preparation for the hearing, the United Nations ruling had expressed that if a person is offended it is their responsibility not to be offended.

[41] When the Applicant was asked questions in cross examination about those Facebook postings and whether Aboriginal people would be entitled to be offended by the postings, the Applicant responded that it was quite possible that many in the Aboriginal community would agree with him. The Applicant elaborated that whilst not born in Australia, he was fiercely Australian and that he considered it was to invite racism when demands were made by individuals to be treated as individuals on the basis of ‘their’ race.

[42] In cross examination, the Applicant was asked whether members of the public would consider that the values he was expressing in the Facebook posts were acceptable to the Respondent. The Applicant responded that he thought it would be a huge stretch of the imagination to think that a reasonable person would think his views were those of the Respondent. He observed that his Facebook profile page referred to his position as a General Hand, not General Manager, Chief Financial Officer, nor an executive.

[43] On any objective level, the Facebook posts display vituperative criticism of Aboriginal people, women, and persons in the media. I am satisfied that the content of the Facebook posts is such, that a reasonable person would be offended by the language used by the Applicant to express himself, and similarly would take offense to the gravamen of the posts. Whether the Applicant sought to offend by his diatribe(s) is of no consequence.

[44] The Respondent was clearly named on the Applicant’s Facebook profile page. While I agree with the Applicant that on an objective basis, it would be fanciful to find that members of the public would think the opinions he expressed were those of the Respondent, it is nevertheless my view that having the Respondent’s name on his Facebook profile page associated the organisation with those Facebook postings, such that a person may perceive the opinions to be representative of the Respondent.

[45] The Respondent espouses certain values, including those of respect and integrity. Yet, to the public, it would appear that one of its employees, the Applicant, espoused opinions that flew in the face of those very same values. The Social Medial Policy stipulated that the employees were not to make opinions or comments that may be perceived to be representative of the opinion of the Respondent. 35 By his actions, the Applicant did just that.

[46] I consider that the Applicant’s conduct constituted a breach of the Respondent’s Social Media Policy and Code. He expressed an opinion in a public forum that was entirely at odds with the values that underpinned the Respondent organisation. In taking this action the Applicant did not uphold the Respondent’s reputation. This is because his Facebook posts demonstrated that the values of the Respondent organisation were not shared by the very employee that had been recruited to provide the service, and ultimately was the face of the Respondent so far as the provision of that service was concerned.

[47] In the circumstances, I am persuaded that the Applicant’s employment was terminated for a valid reason. His misconduct was manifestly serious, and in clear breach of the contract of employment and the Social Media Policy that governed his employment.

3.3 Notification of the reason and an opportunity to respond

[48] At a general level, the case law makes it plain that when it comes providing an opportunity to respond, the process does not require any degree of formality, and that the requirement is to be applied in a practical way in order to ensure that the employee is treated fairly. 36 The Full Bench in Royal Melbourne Institute of Technology v Asher37 observed that in Osman v Toyota Motor Corporation Australia Ltd,38 the Full Bench had referred to the comments of Wilcox CJ in Gibson v Bosmac Pty Ltd39 (approved in Selvachandran40), where Wilcox CJ had said:

Ordinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particular formality. It is intended to be applied in a practical commonsense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section.

[49] The Applicant levelled against the Respondent the contention that he had been denied procedural fairness because he had not been directed to the particular Facebook postings that were the subject of enquiry. He observed that he had not been provided with detail of any offensive articles, had no knowledge of what was considered offensive and therefore questioned how he was supposed to address the postings.

[50] In cross examination, Mr Cutri explained that he was of the opinion that the Applicant was made aware of the Facebook posts because the letter of 20 January 2021 referenced the posts and their offensive nature. Further, and to the extent that the Applicant continued to contend that he had no knowledge as to what was considered offensive, Mr Cutri said that at the second meeting on 27 January 2021, the Applicant brought an example of his Facebook post(s) to the second meeting when responding to the allegations.

[51] In my assessment, Mr Cutri’s evidence was spontaneous, candid and convincing. He was forthright, never seeking to obfuscate. In contrast, the Applicant engaged in prolix explanations, often never responding to what was actually asked of him. I therefore consider that Mr Curtri’s account is to be preferred.

[52] While it may have been preferable to have directed the Applicant’s attention to each of the six Facebook postings, I am satisfied that the Applicant was made aware of the particular matter that was putting his or her job at risk and given an adequate opportunity of defence.

[53] I conclude that the Applicant understood the precise nature of the Respondent’s allegations. In the circumstances, I am satisfied that the Applicant was notified of a valid reason for his dismissal before any action was taken to terminate his employment, 41 and that he was accorded the opportunity to respond.

3.4 Support person

[54] As the Applicant declined to have a support person present when an invite was extended to do so, I am content to conclude that the factor is not relevant in the circumstances of this particular matter.

3.5 Warnings about unsatisfactory performance

[55] As will be evident from the background material, it was not the case that the Respondent sought to rely upon unsatisfactory performance to justify dismissing the Applicant. I am satisfied that the Applicant’s dismissal arose from his failure to comply with the Respondent’s Social Media Policy and Code. It follows that this factor is not relevant to the assessment required.

3.6 Size of the Respondent’s enterprise and dedicated human resource specialists

[56] Neither party made submissions concerning the size of the enterprise or the employ of dedicated human resource specialists. In the circumstances I consider this a neutral factor, albeit I would agree with the Respondent’s contention that it carried out the dismissal process in a procedurally fair manner.

3.7 Any other matters considered relevant

[57] In the letter of termination of 29 January 2021, Ms Cutri notified the Applicant that the Respondent was a diverse and inclusive organisation, noting that its customers and employees demonstrate this diversity in many ways, including cultural, racial, gender identity and abilities.

The letter continued that the Respondent took pride in creating a workplace and service offering that supports and celebrates these differences and having this as a foundation of its external brand and reputation. Consequently, the Respondent had determined that the Applicant’s actions had caused serious and imminent risk to its reputation, and a decision had been reached to summarily dismiss the Applicant for serious misconduct.

[58] Whether the Applicant’s conduct justified summary dismissal for serious misconduct is a factor relevant for consideration under s 387(h) of the Act. 42 However, the expression ‘summary dismissal’ has a reasonably well understood meaning at law. It refers to a dismissal without notice arising from a breach of an essential term of the employment contract, a serious breach of a non-essential term of the contract, or conduct manifesting an intention not to be bound by the contract in the future on the part of the employee.43

[59] As was observed in Ryman v Thrash Pty Ltd t/a Wisharts Automotive Service (Ryman), 44 the payment of a sum in lieu of notice is not consistent with a summary dismissal, understood in the way explained above. The Full Bench in Ryman said:

‘such a payment is best characterised as compensation for the remuneration that an employee would have received if the employee had been afforded the period of notice to which he or she was entitled. If the employer has a right to summarily dismiss, there cannot be any entitlement to notice, and no basis therefore for a payment in lieu of notice’. 45

[60] It is evident from the letter of termination that the Respondent did not consider that the Applicant was entitled a payment in lieu of notice. But, irrespective, made an ex-gratia payment of two weeks’ notice, equivalent to that which would otherwise have been forthcoming under the National Employment Standards. Given the express words of the Respondent regarding the payment constituting an ex-gratia payment and not payment in lieu of notice, I have considered it necessary to consider whether the Applicant’s conduct constituted serious misconduct.

[61] The term ‘serious misconduct’ does not operate as a fixed standard for the determination of the type of conduct by the employee which may warrant summary dismissal. 46 In Sharp v BCS Infrastructure Support Pty Limited,47 the Full Bench referred to the decision in Rankin v Marine Power International Pty Ltd in which Gillard J stated that ‘[T]here is no rule of law that defines the degree of misconduct which would justify dismissal without notice’,48 and identified the touchstone as being whether the conduct was of such a grave nature as to be repugnant to the employment relationship.49

[62] Wilful or deliberate behaviour amounting to serious misconduct is conduct which strikes at the heart of the employment relationship. In North v Television Corporation Ltd 50 Franki J stated:

It is clear that a single act of disobedience may be sufficient to justify dismissal on the ground of misconduct but it was held in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285, that to justify summary dismissal a single act must be such as to show that the employee was repudiating the contract of service or one of its essential conditions.

[63] The decision of Laws v London Chronicle (Indicator Newspapers) Ltd, 51 referred to above, makes it plain that an act of disobedience or misconduct (justifying summary dismissal) requires that the disobedience must be also be ‘wilful’, as observed:

... I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is “wilful”: it does (in other words) connote a deliberate flouting of the essential contractual conditions.

[64] Clearly, the Respondent bears the onus of establishing the serious misconduct. The applicable standard of proof is on the balance of probabilities, but the more serious the allegation, the higher the burden on the employer to prove the allegation. 52

[65] I am satisfied that the Applicant’s misconduct was manifestly serious and in clear breach of his obligations under the Social Media Policy, the Code, and his employment contract. The ordinary relationship of employer and employee at common law is one importing the implied duty of mutual trust. The Respondent clearly trusted the Applicant to uphold its values when communicating content that could be perceived to be representative of the opinion of the Respondent. 53 Furthermore, while the Applicant suggested that he could simply remove reference to the name of the Respondent on his Facebook page, he seemed to be absent any level of insight as to how a reasonable person could perceive the Facebook posts as offensive.

[66] It is, therefore, my conclusion that the ‘trust’ and ‘confidence’ essential to the relationship of employer and employee had been destroyed. There was, in my view, a valid reason for terminating the employment of the Applicant based on his serious misconduct.

[67] In Parmalat Food Products Pty Ltd v Wililo, 54 the Full Bench held:

The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of the termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open. 55

[68] The gravity of the Applicant’s conduct was such that there is no issue regarding disproportionality. I have taken in consideration the Applicant’s short period of service and have, in addition, observed that whilst no issue was taken with his performance during the period this does not mitigate the seriousness of his misconduct.

4 Conclusion

[69] Having taken into account each of the matters specified in s 387, I am satisfied that the Respondent had a valid reason for dismissing the Applicant based on his conduct. I find that the Applicant’s dismissal was not ‘harsh, unjust or unreasonable’, within the meaning of s 387 of the Act. It follows that the Applicant’s dismissal was not unfair. Accordingly, I am obliged to dismiss the application and an Order 56 to that effect is being issued in conjunction with this decision.

DEPUTY PRESIDENT

Appearances:

Mr Paul Waddy, the Applicant;

Mr Ian Curlewis, of Lavan, or the Respondent;

Mr Darren Cutri, for the Respondent.

Hearing details:

Perth (Video);

May 21;

2021.

Printed by authority of the Commonwealth Government Printer

<PR730192>

 1   Witness Statement of Darren Cutri (Exhibit R1) [7] Annexures DC1 – 6.

 2   Exhibit R2.

 3   Exhibit R3.

 4   Exhibit R1 [5].

 5   Ibid.

 6   Exhibit R1 [8].

 7   Exhibit R1 [9].

 8   Ibid.

 9   Exhibit R1 [10].

 10   Exhibit R1 [12].

 11   Exhibit R1 Annexure DC-11.

 12   Exhibit R1 [13].

 13   Exhibit R1 [14].

 14   Exhibit R1 [14].

 15   Exhibit R1 [17].

 16   Ibid.

 17   Fair Work Act 2009 (Cth) s 394(2).

 18   Fair Work Act 2009 (Cth) s 382.

 19   Fair Work Act 2009 (Cth) s 385(d).

 20   (1995) 185 CLR 411, 463.

 21   Fair Work Act 2009 (Cth) s 387(a).

 22   Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 (‘BCS’), [25], affirming B, C and D v Australia Postal Corporation t/as Australia Post [2013] FWCFB 6191, [34].

 23   [2013] FWCFB 6191.

 24   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

 25   R v Darling Island Stevedore & Lighterage (1938) 60 CLR 601, 621-2.

 26   Ibid.

 27   [2013] FWCFB 3316, [8].

 28   Ibid.

 29   (1938) 60 CLR 601, 622.

 30   Rose v Telstra, AIRC Print Q9292 (4 December 1998).

 31   [2010] FWA 7358.

 32   Rose v Telstra AIRC Print Q9292 (4 December 1998).

 33   Starr v Department of Human Services [2016] FWC 1460.

 34   [2016] FWC 1460.

 35   Exhibit R3.

 36   Royal Melbourne Institute of Technology v Asher [2010] FWAFB 1200, [26].

 37   Ibid.

 38   PR948009.

 39   (1995) 60 IR 1.

 40   Selvachandran v Peteron Plastics Pty Ltd (1995) 61 IR 371.

 41   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

 42   Adam O'Connell v Wesfarmers Kleenheat Gas Pty Ltd t/a Kleenheat Gas [2015] FWCFB 8205 citing Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033, [32].

 43   Rankin v Marine Power International Pty Ltd (2001) 107 IR 117 at [237]-[260]; Langer v Robert Quinn t/a Pyrmont Car Store [2014] FWC 7460, [38]; Neil and Chin, The Modern Contract of Employment (Thomson Reuters, 2nd ed, 2017) 11.130; Irving, The Contract of Employment (Lexis Nexis, 2nd ed, 2019) 10.4.

 44   [2015] FWCFB 5264 (‘Ryman’) [29].

 45   Ibid.

 46   BCS [34]; Grandbridge Limited v Mrs Diane Wiburd [2017] FWCFB 6732.

 47   BCS [34].

 48   (2001) 7 IR 117.

 49   BCS [34].

 50   (1976) 11 ALR 599, 616.

 51   [1959] 2 All ER 285.

 52   Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

 53   Exhibit R3.

 54   (2011) 207 IR 243, [24].

 55   Ibid [24].

 56   PR717385.