Fired in a one-minute phone call over a crude Facebook post

What happened

Mr Somogyi worked for LED Technologies, a business with fewer than 20 employees, for just over 13 months from July 2015. He was a merchandiser and company representative who spent most of his days on the road visiting customers.

On 24 August 2016, a work day, he posted a status on his personal Facebook page. It began "I don't have time for people's arrogance" and ended with a sexually crude insult about how someone had got their job. About five minutes later he took it down and replaced it with a longer post explaining that it was about his mother, who he believed was being pushed out of her own job by a newer colleague.

Some of his co-workers saw the first post and told the managing director's assistant, who sent the managing director a screenshot. That afternoon, while Mr Somogyi was visiting customers in Berwick, the managing director rang him. Mr Somogyi's evidence was that he was told to return all company property and, when he asked why, was told "it doesn't matter, you're fired". The call lasted about a minute.

The claim

Mr Somogyi applied to the Fair Work Commission for unfair dismissal. He said he only learnt the reason for his dismissal when the employer filed its response form, which said he had been using social media during working hours against company policy and had already had five written warnings.

He denied receiving any warnings, pointing out that he had been given a pay rise two days after the last one was supposedly issued. He accepted that he had signed a confidentiality agreement, but denied ever being given the policy manual containing the social media rule. The copy of the manual the employer produced had an employee acknowledgement that was unsigned and undated.

Why: the legal test

Under s 385 of the Fair Work Act 2009 (Cth), a dismissal is unfair if the Commission finds it was harsh, unjust or unreasonable. Section 387 lists what the Commission must weigh: whether there was a valid reason related to the worker's conduct or capacity, whether the worker was told that reason, whether they had a chance to respond, and other matters such as the size of the business and whether it had HR expertise.

A valid reason must be sound, defensible and well founded when the facts are looked at objectively. It is not enough that the employer believed it had a good reason.

What the Commission decided

Commissioner Gregory described the post as "undoubtedly crude and immature" and offensive. But he found nothing in the employer's evidence suggesting it was directed at the business or any of its employees. Mr Somogyi's explanation, that it was about his mother's workplace, appeared to be the only plausible one on the evidence.

The employer's other argument was that the post was made during working hours. The Commissioner noted that Mr Somogyi's hours were flexible as a travelling representative and he may well have posted during a break he was entitled to take; there was no clear evidence either way. Nor was there evidence that he had been given the social media policy. The Commissioner also noted that similar robust language appeared to have been used in the workplace. He was not satisfied there was a valid reason for the dismissal.

The process was also unfair. The managing director said he had told Mr Somogyi the dismissal was because of the post, but the Commissioner found it appeared the reasons were not given at the time. The managing director also accepted in evidence that the call was "basically one-way traffic", that he did not give Mr Somogyi much chance to respond, and that he believed Mr Somogyi was lying. The Commissioner accepted that a small business with no HR specialist had limited expertise, but said a worker facing dismissal can reasonably expect to be told the reasons and given a chance to respond before the decision is confirmed. He found the dismissal at least harsh and unreasonable.

How much was awarded

Reinstatement was not realistic, given the managing director's direct involvement and his view of Mr Somogyi. Mr Somogyi had found another job within a week, but it paid about $995 a month less. The Commissioner estimated he would have stayed at least another six months, took the lost earnings over that period (about $5,970) plus the week out of work ($961), and deducted 10% for contingencies. The order was $6,238, less tax.

What this means for you

If you are dismissed over something you posted online, the content alone may not decide the case. It matters whether the post was about your employer, its staff or its customers, when you posted it, and whether you knew of a relevant policy. A post that clearly targets a co-worker or damages the business can still be a valid reason for dismissal.

For employers, the lesson is about process: investigate, put the concern to the worker, listen to the answer, and only then decide. Make sure staff actually receive and acknowledge any social media policy. If you have been dismissed, a Fair Work unfair dismissal application must be lodged within 21 days of the dismissal taking effect.