Firefighter sacked over a private group chat gets his job back

What happened

Martin Pelly moved his young family from Melbourne to Nowra in 2017 to work as a firefighter for Ventia, which provides firefighting services to Defence. By 2022 he was a Qualified Leading Firefighter at HMAS Albatross, described by the Commission as a model employee who had paid for extra training himself.

He was a member of a private Facebook group chat set up by a fellow firefighter. Of its 18 members, 11 were current Ventia employees; the rest were former employees or outsiders. It was not disputed that the content was a mix of pornographic videos, racist memes and idle chat, some of it about work.

Ventia learned of the group when a female employee, answering allegations about her own conduct, handed over posts she had obtained from her father, a group member. Ventia issued a show cause letter on 12 September 2022 suspending him with pay, then dismissed him on 20 September 2022, saying his posts breached its harassment, conduct and social media policies. In his reply he apologised and asked for a second chance.

The claim and the legal test

Mr Pelly applied for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth). A dismissal is unfair if it was harsh, unjust or unreasonable. Under s 387 the Commission weighs a list of factors, starting with whether there was a valid reason related to the worker's conduct, and whether the worker was told of it and could respond.

Most of Mr Pelly's posts were made in his own time. For out-of-hours conduct the Commission applies Rose v Telstra: an employer can act on it only in limited cases, such as where the conduct, viewed objectively, is likely to cause serious damage to the employment relationship, damages the employer's interests, or is incompatible with the worker's duties. A later Full Bench added that the conduct must be sufficiently connected to the job, and that the whole factual picture must be considered.

What the Commission decided

Commissioner Riordan found a valid reason, but a narrow one. One post was made on day shift: a joke photo of an old bicycle with a fire extinguisher on each side, about the station's wait for a new fire truck. Another was a photo of a colleague taken in the base carpark, which Ventia's policy did not allow without Defence approval. Those two policy breaches were a valid reason.

Much else weighed against Ventia. The process was "haphazard and unsatisfactory", and Mr Pelly had not been trained in Ventia's social media policy. The manager who made the decision made substantial changes to his witness statement at the hearing, and the Commissioner found Mr Pelly had been attributed more posts than he actually made. Another leading firefighter whose posts the Commissioner found equally offensive was never investigated. The regional manager the bicycle joke was aimed at took no offence.

Applying Rose v Telstra, the Commissioner found no serious damage to the employment relationship and no damage to Ventia's interests beyond "some possible minor embarrassment with Defence". An occasional post about work, in a group where 39% of members were not Ventia employees, did not make the group work-related. The dismissal was harsh, unjust and unreasonable.

How it was put right

Reinstatement is the primary remedy for an unfair dismissal. The regional manager gave evidence that Mr Pelly would be very professional if he returned, and the Commissioner was satisfied the relationship could be re-established. He ordered Mr Pelly reinstated as a Qualified Leading Firefighter at HMAS Albatross with continuity of service, and back pay to the date of dismissal, less one month's pay for the two policy breaches and anything he had earned in the meantime.

The appeal

Ventia appealed. On 1 November 2023 a Full Bench gave permission to appeal, because the case raised an important question about out-of-hours social media among co-workers, but dismissed the appeal.

The Full Bench held that workmates privately sharing pornographic or offensive material "is not of itself, a basis to find a connection to employment". This group existed independently of work, its members joined voluntarily, and there was no evidence that any of them was offended or shared the material outside the group. A connection might exist where material is viewed at work where others could see it, where it affects people at work, or where the employer's devices are used in breach of a clearly stated policy. The Full Bench added that such material "has no place at or in any workplace" and called sharing it among colleagues "abject stupidity".

The contrast is in the companion case, Thompson v Ventia [2023] FWC 904. The firefighter who set up the group had distributed pornography during work hours, and his claim was dismissed.

What this means for you

A private chat with workmates is not automatically beyond your employer's reach, but nor is everything in it a reason for dismissal. What matters is the connection to work: posting on shift, using work devices, targeting colleagues or causing real harm to the business all strengthen it.

If you are accused over social media posts, it is worth checking what the employer says you actually posted and how others in the same group were treated. Employers should check who posted what before deciding and treat like conduct alike. If you have been dismissed, the time limit for an unfair dismissal claim is 21 days.