In the case of Stutsel v Linfox Australia Pty Ltd [2011] FWA 8444, Mr Stutsel, an employed truck driver, was summarily dismissed on grounds of serious misconduct due to a racially derogatory and sexist posting uploaded to his Facebook profile. Mr Stutsel’s comments were brought to Linfox’s attention not by his Facebook friends, but by two managers employed by Linfox who were able to access Mr Stutsel’s Facebook profile which was open to the public.
Mr Stutsel sought reinstatement from Fair Work Australia on grounds that his dismissal was harsh, unjust and unreasonable. Fair Work Australia agreed and reinstated Mr Stutsel. The reasons for the reinstatement were primarily due to Linfox not having an adequate social media policy which provided Linfox with appropriate measures to discipline employees for inappropriate online content. Linfox subsequently appealed this to the Full Bench who upheld the decision. However the Full Bench stated that:
“Unlike conversations in a pub or cafe, the Facebook conversations leave a permanent written record of statements and comments made by the participants, which can be read at any time into the future until they are taken down by the page owner” and that “[e]mployees should therefore exercise considerable care in using social networking sites in making comments or conducting conversations about their managers and fellow employees.”
Linfox has sought further judicial review of this decision at the Federal Court of Australia.
Tips
- This case demonstrates the importance of implementing appropriate measures such as a social media policy to deal with unexpected employee conduct at work, or outside of work hours.
- If you are an employee, you should set your privacy settings on your social media outlets and think twice before you add a colleague to your social media profile.
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