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:
- The nature of the incident
- Past behaviours and employment history, including length of service
- If policies are in place and did the behaviour breach the policy
- Are options other than termination more appropriate.
- 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
- A clearly written social media policy
- Training that clearly outlines the contents of the policy so that employees understand the behavioural expectations of the employer
- Investigate matters of this nature thoroughly and impartially before making final decisions.
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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
