Social media – unfair dismissal

Singh V Aerocare Flight Support Pty Ltd [2016] FWC 6186

Social media unfair dismissal. A decision by the Fair Work Commission has outlined the issues relating to employees making public comments on Facebook outside of work hours however it has also highlighted the necessity for employer to ensure that matters such as this are properly investigating before jumping to a conclusion.

Mr Nirmal Singh was a casual baggage handler employed by Aerocare Flight Support, an aviation ground handling and services company. It is important to note that Mr Singh possessed an Airport Security Identification Card and was authorised to work within the restricted security-sensitive areas of Perth Airport.

Mr Singh was dismissed by Aerocare after it was discovered by co-workers that he had made posts on Facebook that appeared may have expressed radical views. In one post, Mr Singh linked to an article posted by an Australian Islamic group and included his own commentary, being the words “We all support ISIS.”

Prior to his employment being terminated, Mr Singh attended a meeting with Aerocare management who alleged that his Facebook posts were contrary to the Aerocare social media policy and, given the nature of his job, represented a security risk. Mr Singh claimed that the posts had been sarcastic, that he was opposed to ISIS and extremism, and he was sorry that his posts had been misinterpreted.

That meeting was adjourned to allow Aerocare to review their notes and consider Mr Singh’s explanation. Approximately 10 minutes later, the meeting recommenced and Mr Singh was informed that he would not be offered any further shifts and his employment was effectively terminated.

Mr Singh subsequently made an application to the FWC for unfair dismissal.

In the decision, Commissioner Hunt confirmed that Mr Singh’s post was in breach of Aerocare’s social media policy. It stated that “[it is not] acceptable for employees in the relevant airport environment to post what appears to be support for a terrorist organisation and explain it away as sarcasm, comedy or satire. Mr Singh did a very stupid thing.” The FWC also stated that if Mr Singh had in fact confirmed that he was a supporter of ISIS, it would have no hesitation in finding that the Facebook post was a valid reason for dismissal.

Commissioner Hunt commented that:

  • It was unsatisfactory that Aerocare had failed to properly investigate the complete news feed of Mr Singh’s Facebook account. If time and attention had been taken to review the news feed, Aerocare would have discovered that Mr Singh was not, in fact, a supporter of ISIS.
  • Mr Singh could have been invited to explain his recent Facebook posts to Aerocare, which would have taken no more than 1-2 hours. Such an explanation would have satisfied Aerocare that Mr Singh was not an ISIS supporter. He was not invited to do so.
  • The 10 minute break during the disciplinary meeting was not satisfactory, as it was impossible during that time for Aerocare to have adequately considered all of the issues discussed in the meeting.
  • It would have been appropriate for Aerocare to have continued Mr Singh’s suspension, which would have allowed management to fully consider the issues and to make further inquiries with respect to Mr Singh’s Facebook account.
  • Prior to the meeting, Aerocare decision makers had closed their minds to any explanation from Mr Singh, and they had not considered any sanction other than terminating his employment.

Commissioner Hunt found that there was no valid reason for Mr Singh’s termination and his claim for unfair dismissal was upheld. Mr Singh was awarded compensation the equivalent of 8 weeks’ pay, however that amount was reduced by 40% because of Mr Singh’s misconduct in breaching Aerocare’s social media policy.

This case highlights the importance of conducting through and timely investigations into conduct that appear to be improper or in breach of company policies especially those relating to comments made by employees online and in social media. Sarcasm and satire can be difficult to detect in text-based communication, it is crucial to investigate the context in which those comments are made.

When considering whether an employee’s conduct warrants dismissal, employers must ensure that the employee is afforded procedural fairness in that any explanation provided by the employee it taken into account before the final decision is made and if there any alternative sanctions, other than dismissal, that might be appropriate. Failure to do so may unnecessarily expose the employer to a claim for unfair dismissal.

AWPTI can assist you with full investigation services – http://awpti.com.au/investigations/

AWPTI – workplace investigations in Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations – misconduct, bullying, harassment & sexual harassment investigations

www.awpti.com.au
http://awpti.com.au/investigations/

If your organisation is encountering these types of issues and you are not sure what to do, I recommend that you contact an expert for assistance with training and potential investigations.

The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.

You can contact me on 0409 078 322 or phil@awpti.com.au

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory.  It is recommended that should you encounter complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigation

social media unfair dismissal

Anti bullying policy training

An anti bullying policy should be considered to “best practice” in any organisation.  The policy should outline,

  • What is unacceptable behaviour
  • What behaviours may constitute bullying.
  • What is not bullying
  • What are the responsibilities of employees at all levels in relation to acceptable behaviour and bullying?
  • The process of reported and investigating complaints of bullying
  • Possible resolutions to bullying complaints

It is becoming increasingly common for employees to assert they are being bullied when reasonable management action has taken place, such as feedback and performance counselling.

In relation to workplace behaviour, it is widely accepted that employees should treat one another with courtesy and respect. However, in many cases this is not a message that is reinforced. The workplace anti-bullying policy, along with other relevant policies, provided the opportunity to highlight the concept of respect.

Modern Australian workplaces are made up of diverse groups of people, this means that employees may have different views about what is acceptable behaviour and how to conduct themselves at work.

It is important that employers create a clear and consistent message regarding behavioural expectations by;

Clearly defining:

  • Workplace bullying
  • Unacceptable conduct
  • Procedures for reporting bullying or unacceptable conduct
  • The investigation process
  • Outcomes of substantiated complaints of bullying in the workplace
  • Confidentially and victimisation

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Training

As important as having a policy, training should be conducted to reinforce the policy and allow employees to ask questions and understand that workplace bullying poses a serious threat to health and safety and that organisations have a duty of care to take all reasonable steps to prevent and/or respond to bullying.

If your organisation need help draft an anti-bullying policy or creating a facilitating training AWPTI can assist. http://awpti.com.au/training/

AWPTI – workplace investigations in Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations

www.awpti.com.au
http://awpti.com.au/investigations/

The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations and provide you and your employees with up to date a relevant training in the areas of misconduct, investigations, procedural fairness, reasonable management action, performance management, bullying & harassment and other issues facing employers and workplaces.

Contact me at phil@awpti.com.au or 0409 078 322 or via http://awpti.com.au/

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory.  It is recommended that should you encounter complaints in the workplace that you seek advice from a suitability qualified and experienced workplace investigator.

anti bullying

 

 

 Addressing Workplace Bullying

Addressing Workplace bullying, harassment and sexual harassment are common problems faced by many employers and organisations. If not addressed the behaviour of a few can lead the detriment of others and to a large and potentially costly headache for the business.

In recent times there have been a number of very costly judgements being awarded against employers for breaching their duty of care to employees who were the victims of bullying, harassment and sexual harassment in the workplace.

Addressing workplace bullying, harassment and sexual harassment is not a simple fix, however there are things you can and should do.

Here is a four step method to;

  1. Take reasonable stops to respond to and reduce workplace bullying, harassment and sexual harassment in the workplace.
  2. Cover the business if complaints are made
  3. Promote an inclusive workplace culture
  4. Be seen as an employer of choice

Step 1

Have well written and up to date policies and procedures in place.

Be warned however, bullies and harassers ignore policies, but policies are the law in your company and a breach may be grounds for dismissal. If you don’t have the laws in place, bullies and harassers can behave with impunity.

If you don’t have up to date policies in place we can help – http://awpti.com.au/backup/hr-support/

Step 2

Have training in place designed to clearly outline your policies and the behavioural expectations the company has of its employees.

Again be warned, bullies and harassers ignore training, but if they breach a policy they cannot say “I wasn’t told.” If they are recorded and having undertaken the training, especially with face to face training, where they can’t use excuses like ‘the system was down’, or ‘I missed that bit’.

Good training must include the definitions of what is and what is not bullying, harassment and sexual harassment in the workplace and include the sanctions for breaching policy and being a bully or harasser.

If you don’t have effective workplace training in place we can help – http://awpti.com.au/backup/training/

Step 3

Have a robust and impartial investigation process in place. Make sure that if employees breach policy or act in a bullying, harassing and sexual harassing manner they will be dealt with.

Often engaging an external and professional investigator will send the message that you are not mucking around.

Step 4

Follow up on substantiated findings of bullying, harassment and sexual harassment with decisive action, it may be another case of sending a message that bullying, harassment and sexual harassment will not be tolerated and will be dealt with.

A note of caution;

You must ensure that all investigations are carried out in the professional manner affording the alleged perpetrator procedural fairness including;

  • The right to know the allegations made against them
  • The right to be hard and have their version of events taken into consideration
  • The right to a final determination based on the evidence
  • The right to an unbiased decision maker.
  • The right to a support person during interviews and meetings

Other considerations are;

  • The investigation methodology
  • The rules of evidence
  • Timing of the investigation (including how long it took)

Organisations should not fear taking decisive disciplinary action if they follow correct procedure.

When it comes to conducting a full, professional, timely and cost effective workplace investigation we can help

AWPTI – workplace investigations Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations

www.awpti.com.au
http://awpti.com.au/investigations/

For more information:

www.awpti.com.auenquiries@awpti.com.au  or 02 9674 4279

The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory. It is recommended that should you encounter complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigators.

Following company policies

Following company policies is vitally important especially when it comes to disciplining or dismissing employees.

In the recent case of Moore v Specialist Diagnostic Services Pty Ltd t/a Dorevitch Pathology [2016] FWC 5910, the Fair Work Commission held that an employee was unfairly dismissed in circumstances where she refused to take a urine test because as her employer was not following company policies or Australian and New Zealand standards.

The employer received an allegation that the applicant Ms Moore, a Collections Coordinator, was abusing illicit drugs.  The HR Department and Ms Moore’s supervisor asked her to attend a meeting during which they requested her to provide a urine sample.

Ms Moore agreed to provide the sample, however she objected to her supervisor collecting the sample.  She became agitated and subsequently left the meeting, did not return to work despite requests and provided a medical certificate stating she would not be returning to work.

Upon her return to work, in a second meeting with her supervisor and the HR officer, Ms Moore apologised for her behaviour and again indicated she was willing to provide a urine sample.  She was terminated that day for serious misconduct for failing to follow management’s reasonable directions.

Ms Moore alleged that she had been unfairly dismissed on the basis there was no valid reason for her dismissal and she was not awarded procedural fairness.  She further claimed that the collections procedure proposed by her supervisor and the HR officer was not following company policies and not in accordance with Dorevitch’s policy or Australian and New Zealand standards.

Commissioner Bissett upheld Ms Moore’s claim and found that her behaviour at the first meeting did not warrant serious misconduct justifying dismissal.

The Commissioner also held that allowing a direct supervisor to collect the urine sample was in breach of Dorevitch’s policy or Australian New Zealand standards and therefore Ms Moore was entitled to request that proper procedure be followed.  It was also noted that whilst Dorevitch’s policy allowed it discretion as to when a sample could be collected and screening methods, the collection process proposed by Dorevitch in relation to Ms Moore would have also resulted in a breach of the chain of custody procedure.

Commissioner Bissett also emphasised the need for employers to adhere to their own workplace policies and best practice, when it comes to drug and alcohol testing in the workplace.

The employee was awarded $27,900 in compensation plus superannuation.

Drug and Alcohol Testing

It is important that workplace policies which cover drug and alcohol testing are carefully implemented, communicated and managed in the workplace.

Employers must also bear in mind that drug and alcohol testing should be properly incorporated into workplace policies and procedures as drug and alcohol issues may also impact on the employer’s work health and safety obligations to workers.

As this decision shows, failure to properly manage drug and alcohol testing may pose risks for employers, such as discrimination, bullying and unfair dismissal.

Workplace Policies and Procedures

In general, when it comes to workplace policies and procedures, employers should ensure that:

  • they are regularly reviewed and updated;
  • they are applied as a matter of best practice;
  • they allow for a certain degree of discretion;
  • that staff receive training on the organisation’s policies and procedures, particularly those staff who are responsible for implementing and managing those policies and procedures.

Employers should also be mindful as to whether workplace policies and procedures are contractually binding, as a breach of a policy or procedure may then potentially lead to a breach of contract claim.

www.awpti.com.au/hr -support

AWPTI – workplace investigations Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations

www.awpti.com.au
http://awpti.com.au/investigations/