Sacked over a sexual Facebook meme in a 'robust' sales office

What happened

Mr Thompson started as a finance broker with 360 Finance in about February 2013, arranging asset finance through the banks. The business was later bought by a larger motor group, which AP Eagers took over in October 2019.

The workplace he described was rough: racist and sexist emails and memes, crude nicknames, and swearing on the sales floor. He admitted joining in, and the Commission accepted that standards there fell far below what would be seen as normal at a workplace.

He also had a disciplinary record. Over the years he was given several "final" warnings. In November 2019 a vehicle supplier complained after he told someone there to "tighten your skirt" and get an invoice right. He was given a formal warning, demoted from his second-in-charge role and told his calls would be audited for three months.

In March 2020 he was stood down because of the pandemic. On 17 June 2020, while still stood down, he posted a meme on his personal Facebook page. It paired photos of himself and a female colleague with a sexual joke. He said she had sent him the photo; she knew the meme would go up. But when others began responding and contacting her, she asked him to take it down, which he eventually did. Later that evening he posted a second meme: a photo of himself with crude words saying he had set out to upset people, and had.

The investigation and the dismissal

On 18 June 2020 Mr Thompson met the general manager and a human resources manager. He admitted posting both memes and, by the employer's account, said he had his colleague's permission and that the posts were not inappropriate because his Facebook page did not name his employer.

That evening he was sent a show cause letter, a letter asking him to explain in writing why he should not be dismissed, with a deadline of noon the next day. He gave no written response. At a second meeting on 19 June 2020 he said a "funny meme" on his own page did not justify dismissal, and pointed to his 7.5 years' service, saying he was a top performer.

He was summarily dismissed that day, without notice. The employer's letter called his conduct social media misuse, misuse of company property, sexual harassment and a failure to follow its policies.

The claim

Mr Thompson applied to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth) for an unfair dismissal remedy, and asked to be reinstated with back pay. His main argument was that the employer had tolerated this kind of behaviour for years, so it could not suddenly treat it as a sacking offence. He also said his colleague had agreed to the post and that the process was rushed.

Why: the legal test

A dismissal is unfair if it was harsh, unjust or unreasonable. Under s 387 the Commission weighs a list of factors: whether there was a valid reason related to the worker's conduct or capacity, whether the worker was told of that reason and given a chance to respond, warnings about unsatisfactory performance, the employer's size and HR resources, and anything else relevant.

A valid reason is one that is "sound, defensible or well founded". Where the reason is misconduct, the Commission decides for itself whether the conduct happened, and then whether it was serious enough to justify dismissal. Mr Thompson admitted the posts, so the question was how serious they were, given the culture around him.

What the Commission decided

Deputy President Lake dismissed the claim on 6 May 2021. He found that the first meme, coupled with the second, arguably retaliatory, one, was serious misconduct.

He accepted that the culture fell well short of what is expected, and that a string of "final" warnings may have left Mr Thompson unclear about where he stood. But the new owners had given staff training on their policies and were trying to improve the culture, and their actions were consistent with a reforming workplace. The colleague knew the meme would be posted, but both should have foreseen that others would see it. The conduct was "plainly inappropriate, if not also unlawful".

The underlying issue was the sexually explicit and public nature of the post, and Mr Thompson's lack of insight and remorse. Comparing himself to the general manager, who he said swore at staff, only showed he did not understand why his own conduct was a problem. Even in a sales workplace with a "robust" culture, his conduct was serious enough to be a valid reason.

The process was fair. He was told the reasons in writing and given a chance to respond, but chose not to reply in writing. He had been warned about his conduct before, and the employer had dedicated HR staff. His years of service and difficulty finding work were not enough to make the dismissal harsh.

What this means for you

A personal social media account is not a shield. When a post is about a co-worker and is seen by people from work, it can be treated as workplace conduct, even if you posted it while stood down at home.

"Everyone does it" is a weak defence once an employer has made clear things are changing, especially if you have been warned before.

If you receive a show cause letter, take it seriously and respond in writing. If you have been dismissed, act quickly: an unfair dismissal application must be lodged within 21 days.