Social media case

Social media case – Recently at the Fair Work Commission in the case of Renton v Bendigo Health Care Group [2016] FWC 9089, it was highlighted that employers need to consider the appropriateness of penalties and having policies in place when considering a decision to terminate employees for misconduct and is a reminder about the use and abuse of social media in the workplace

Link to case – https://www.fwc.gov.au/documents/decisionssigned/html/2016fwc9089.htm

In the Renton case, an employee of Bendigo Health Care Group was found to have been unfairly dismissed despite ‘tagging’ two of his colleagues in an offensive and sexually explicit video post on Facebook and on the same day had also left blobs of sorbolene cream and tissues on the desk of a colleague tagged in the video.

That colleague complained about the two incidents and the employer dismissed the employee for serious misconduct.

Commissioner Bissett found that the employee had:

  • negatively affected the health and safety of colleagues
  • engaged in conduct that had the potential to damage the employer’s reputation
  • exposed his colleagues to humiliation and ridicule at work.

The Commissioner stated,

“Whilst Mr Renton is apologetic, he has displayed a lack of insight into the effect of his post on his colleagues – even at the hearing of his application he failed to appreciate that it caused real offence. To this extent, I am not sure the basis of his apologies. He compounded his Facebook misdeed by placing blobs of sorbolene cream on Mr Christie’s desk. That act was boorish.

Having said this, however, I consider, on fine balance, that the decision to terminate Mr Renton’s employment was harsh in that it was disproportionate to the gravity of the misconduct.”

Mr Renton has no history of misconduct at work. Whilst it is apparent he and Mr Christie have exchanged ‘jokes’ in the past, not dissimilar to the sorbolene incident, this has gone unremarked by either of them, their colleagues or management (if it was aware of these ‘jokes’). Further, the Facebook posting and its naming of work colleagues and ‘work’ is a one-off incident. Mr Renton had not drawn such connections in the past. Whilst Mr Renton’s insight into the incident may be questioned it can only be hoped he has learnt from his conduct. Further, there was no suggestion that the incident had any adverse effect on any other aspect of Mr Renton’s work.

Commissioner Bissett held that the behaviour was a one-off nature and that there had been a lack of previous misconduct. Having found the dismissal of the employee to be harsh and as a result Mr Renton was unfairly dismissed.

Commissioner Bissett considered that the incident was an isolated one and his employment history was otherwise spotless.

Getting termination right.

This decision suggests that employers must consider a number of issues when deciding to terminate an employee such as:

  1. The nature of the incident
  2. Past behaviours and employment history, including length of service
  3. If policies are in place and did the behaviour breach the policy
  4. Are options other than termination more appropriate.
  5. Does the punishment fit the crime, as matter also addressed in Dawson v Qantas Airways Limited (2016) FWC 8249 – http://awpti.com.au/fwc-unfair-dismissal/

It is recommended that employers have in place

  1. A clearly written social media policy
  2. Training that clearly outlines the contents of the policy so that employees understand the behavioural expectations of the employer
  3. Investigate matters of this nature thoroughly and impartially before making final decisions.

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/

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 02 9674 4279 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 investigator

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

HR Support – Does your business have up to date and compliant workplace polices in place?

HR Support – In the recent case of Shane Clayton v Coles Group Supply Chain Pty Ltd [2016] Fair Work Commission found that an employee who consumed cannabis before attending work was not unfairly dismissed for breach of the employer’s ‘zero tolerance’ drug and alcohol policy.

The applicant, Mr Clayton was employed by Coles at a distribution centre his job required him to operate manual handling equipment. Coles classed the distribution centre, as a high risk environment, had a ‘zero tolerance’ drug and alcohol policy.

in January 2016, Mr Clayton was involved in a forklift incident, it was accepted that the incident was not his fault; however Mr Clayton underwent an oral fluid drug test that returned a positive result for cannabis. Further testing confirmed the on-site test result.

On 1 February 2016, Coles conducted a disciplinary meeting and provided Mr Clayton with the opportunity to show cause as to why his employment should not be terminated. After considering Mr Clayton’s response, Coles terminated his employment summarily without notice or payment in lieu.

Mr Clayton argued that the dismissal was unfair because;

  1. He was advised during the induction training that he needed to ensure that he did not smoke marijuana within 3 to 6 hours of the commencement of his shift and he had complied with this.
  2. He reasonably believed that he complied with Coles’ drug and alcohol policy by leaving a considerably longer gap between his consumption of cannabis and his attendance at work.
  3. His consumption of cannabis was linked to workplace stress and was part of his strategy to manage that alleged stress.

 

The Commission found that Mr Clayton’s dismissal did not constitute unfair dismissal because:

  1. There were valid grounds for Mr Clayton’s dismissal. The Commission concluded that it was reasonable for Coles to have a zero tolerance drug and alcohol policy that should be consistently applied because of:
  2. The nature of the workplace: a busy environment with various vehicles and machinery being operated;
  3. the work health and safety risks associated with employees working under the influence of drugs in this type of environment; and
  4. the lack of an objective test for determining Mr Clayton’s impairment.
  5. Mr Clayton was notified of the reason for his dismissal.
  6. Mr Clayton was afforded a proper opportunity to respond to the allegations. It noted that the meeting on 1 February 2016 was adjourned to allow Mr Clayton time to consider the allegations and provide a response.
  7. Mr Clayton was accompanied by a support person in discussions concerning the matters leading to his dismissal.

The Commission held that while the use of cannabis for pain relief may be considered a mitigating factor, that factor needed to be weighed up in circumstances where Coles had a confidential scheme and policy that encouraged self-reporting problems without sanctions. The Commission also found that the employee used cannabis for recreational purposes.

While the Commission also acknowledged that there were potential dangers for an employer in providing information about detection periods as this may detract from the zero tolerance message, any information provided to Mr Clayton by Coles did not provide a mitigating factor because:

  1. The window of detection was given as an indicative guide only and could not reasonably be expected to represent a guaranteed safe or reliable withholding period given the context in which it was provided.
  2. The responsibility upon an employee not to attend work with any detectable drugs in their system was clear and understood.
  3. Mr Clayton was advised that if in doubt, he should not attend for work.

The Commission found that Mr Clayton had consumed cannabis on the morning before his shift, and could not be confident that his system would be clear of the drug when he attended work. He was therefore, at best, recklessly indifferent to his potential to breach the zero tolerance policy, and any confidence to the contrary could not be soundly based.

While the Commission held that the lack of notice or payment in lieu of notice would usually be a factor strongly supporting a finding that the dismissal was unfair, this was not decisive here. This was because Mr Clayton had misled Coles about the timing of his consumption of cannabis and could not have legitimately relied upon the indicative window of detection.

Lessons to be learned for employers

  • This case highlights the importance of having a comprehensive drug and alcohol policy that is consistently applied.
  • It is advisable to provide employees with training that clearly outlines their responsibilities in relation to workplace expectations and behaviours
  • Get good HR Support

If you organisation does not have up to date and complaint workplace polices in place and training for your employees, please contact AWPTI and allow us to assist you with HR Support – http://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/

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 for HR Support

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.

 

Why do managers get complaints and what can be done to minimise the risk?

What is Reasonable Management Action, why do managers get complaints, as a manager or employer you can run the risk of having complaints made against you by virtue of your position and the decisions you make involving employees on a daily basis. As a HR professional you may have to deal with these complaints

The quarterly reports (2015 – 2016) for anti-bullying order applications made at the Fair Work Commission showed the following based on information provided by the applicant in the application;

Applications based on complaints of unreasonable behaviour by a manager or group of managers often as a result of Reasonable Management Action

January to March 2016 – 65% of total applications
October to December 2015 – 65% of total applications
July to September 2015 – 75% of total applications
April to June 2015 – 72% of total applications

Full details of the reports are here – https://www.fwc.gov.au/about-us/reports-publications/quarterly-reports

 

Why is this so?

In my experience having investigated 100s of workplace complaints I have found that complaints against managers usually fall into three categories

  1. What the manager did
  2. How the manager did it
  3. What the manager didn’t do

 

Sounds very broad let me narrow it down.

 

  • What the manager did.

Managers make decisions and take actions that affect employees on a daily basis. Often decisions and actions the most common of which is providing feedback that is not positive and/or conducting performance management result in complaints of bullying or harassment.

 

The Fair Work Act s789FD (2) tell us;

Behaviour will not be considered bullying if it is reasonable management action carried out in a reasonable manner.

This exclusion is comprised of three elements:

  • The behaviour must be management action
  • It must be reasonable for the management action to be taken, and
  • The management action must be carried out in a manner that is reasonable.

 

The challenge for managers is to ensure that their actions fulfill the three point criteria.

Be warned – If bullying and/or harassment is occurring you cannot call it a management action.

Assuming that bullying has not occurred and the complaint has resulted following some form of performance management when I investigate these types of matters I look at,

  • Is the action able to be justified?
  • Was the action warranted?
  • What was the reason or cause for the action to be taken in the first place?
  • Was the action carried out in a fair and reasonable manner?

 

I recommend that all managers, employers and HR professionals have a sound understanding of what is and what is not reasonable management action and how to implement management action in a reasonable manner.

  1. How the manager did it.

In many cases managers fulfil the what part of the criteria but fall down on the how.

Many managers do not like providing adverse feedback and/or conducting performance management meetings and as result it is conducted poorly and in many cases leads to a complaint.

Having a sound understanding of how to conduct performance management meetings and the associated process is essential.  Being aware of the concepts of procedural fairness and unfair dismissal is equally as essential and can save a lot of money in the long run.

      3. What the manager didn’t do.

Managers are often the first port of call for someone making a complaint; in addition they may be the person that becomes aware of employee misconduct.

It is important that managers deal with misconduct and/or receive the complaints in a proper manner and take some sort of action.

It is also important that managers deal with misconduct and/or handle complaints in a proper, timely and professional manner as the outcome may result in the termination of an employee.

When the termination of an employee is a possibility it is essential that correct procedure is followed, failing to do so can lead to the potentially costly legal action by that employee.

It must be noted that taking no action when a problem is apparent or a complaint is made can also lead to potentially high cost legal action involving claims of negligence and a breach of the duty of care to the employee/s involved.

Reasonable Management Action – What can you do?

To address these issues I have developed a training program for managers, employers and HR professionals called “Management Essentials”  http://awpti.com.au/backup/training/

It is a full day program that consists of;

  • Understanding reasonable management action
  • Performance management to avoid complaints.
  • Dealing with misconduct and complaint handling

Having effective training in place in these critical areas is essential and a means of ensuring you have taken all reasonable steps to satisfy your duty of care to both managers and employees.

If you are a manager who wants to understand these concepts and minimise to the risk of having complaints made against you or if you are a HR professional that wants to train your managers and also minimise to the risk of complaints against your organisation please contact me for more details or check out our workplace training page.

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 investigator.

 

Posting on social media – Wild and free or are there rules?

Recently in the Fair Work Commission in the case of Roberts v View Launceston Pty Ltd & Ors [2015] FWC 6656 the issue of a defriending on Facebook was raised as workplace bullying.

While it was established that immediately after a workplace confrontation in January 2015, Ms Bird removed Ms Roberts from her list of Facebook friends, at no stage did the FWC say “removing someone from Facebook is bullying”!

The ‘unfriending’ was described as “indicative” of the fact Ms Bird was feeling angry and hostile towards Ms Roberts at the time. It wasn’t bullying but it gave the alleged bullying some context.

Cases like this raise a number of questions including can I be held accountable for what I post on social medias sites such as Facebook and Twitter?

When posting on platforms such as Facebook and Twitter it is important to understand that you are still subject to the laws relating to defamation.

Before you post on Facebook or Twitter remember that you may be liable if you defame someone, just like a newspaper would be, so it is wise to take a breath, go for a walk and think about what you are about to say via the post.

 

So what do you need to know about social media defamation?

  1. Generally defamation occurs when a person intentionally spreads information about another person or group of people that causes damage to the reputation of that person or people that could make others think less of them.
  2. A defamation action can be taken regardless of the medium or platform. For example a person can be defamed on the internet, in a newspaper or magazine, in print or by photos. Although defamation cases involving social media platforms like Facebook or Twitter are relatively new the basic principles apply.
  3. A person who did not create the defamatory material, but distributes it for instance by “retweeting” or “reposting” or “sharing” can also be held liable for defamation.
  4. There are defences to defamation such as the statement was true, or that it was an expression of an honest opinion.
  5. Be careful to check your facts before posting as you may be guilty of defamation if you spread information that constitutes a hurtful and untrue statement of fact about another person. Ignorance is no excuse.

 

What should I do if I’m accused of social media defamation?

  1. Decide if you would like to defend any action taken against you. Even if you have a defence it is going to be a costly exercise and then even if you win you may not recover the money you spend.
  2. Remove the post.
  3. Offer a personal apology.
  4. Make a public retraction

If you’re lucky, the person will forgive you and you won’t end up in court.

With the increasing use of social media, everyday people are in effect becoming publishers, you will be subjected to the same laws that apply to newspapers and other media and news outlets.

In 2015, we hold a device in our hand that can give us access to the entire knowledge base of human kind, but what do most people do with it? They post photos of the lunch, cats and have arguments with people they don’t know.

Albert Einstein is often quoted as having said,

“I fear the day that technology will surpass our human interaction. The world will have a generation of idiots.”

Whether or not he actually said this is food for conjecture. However before posting on Facebook or other mediums, you would do well to ask yourself “Would I say this to the person’s face”?

From a business perspective a post made at work or using the company IT can create problems for the business and may be a breach of the social media policy