Posting sexually suggestive meme on Facebook, valid ground for dismissal

Finance Broker’s role

The finance broker was hired on February 2013. He helped clients organise their assets, apply for and settle loans through banks and he dealt with clients through phone or email. His work performance depended on the number of loans he generated for the finance company. In 2017, the Finance Broker’s position was changed into Finance and Insurance Consultant.

“Robust” company culture

Employees sent racist pictures, emails, and memes and even sent each other racist gifts but the owners of the finance company had a “hands off” approach and did not manage or discipline their sales staff so long as they met their sales targets. Staff were subjected to sexual harassment such as sexual innuendo, public groping, making suggestive comments; gossip and rumour about interoffice relationships were spread but management never disciplined them. The staff regularly swore whilst working at the office and sometimes used aggressive or abusive tone in conversations or “locker room” talk.

Company owners ignored inappropriate behaviour

At that time, the finance company was a small business but it expanded and acquired other finance companies. The managers often sent employees letters notifying them that their behaviour was not acceptable but no one was disciplined. In fact, despite engaging in these behaviours, management even promoted the Finance Broker.

History of inappropriate conduct

After the company owners handed over the management of the companies to others. The new managers began disciplining the Finance Broker for his inappropriate conduct. New managers began to send letters warning employees about their offensive and inappropriate behaviour at work. Thus, the Finance Broker developed a history of being disciplined for making inappropriate comments regarding women.

Spreading malicious gossip

The Finance Broker received a first warning letter in early 2019 because he had seen the sister of the company owner leaving the Christmas party with a manager and he had speculated to his colleagues that the pair probably left to have sexual intercourse. He was disciplined after management became aware of the rumour spread by the Finance Manager. He was told by his superiors to apologize to the sister of the company owner.

Retaining client files without regard to the duty of confidentiality

Two weeks later, when the Finance Broker went on holiday, management searched his office drawer and found that he had left closed client files among his things. The client files which ought to have been confidential was not under lock and key.

Pornographic material through office email

Then, the Finance Broker had not alerted management that he had been receiving the emails meant for one of the company owners. He had not alerted management to this error because the Finance Broker retrieved information that allowed him to get more clients. But a lot of pornographic material was also sent to that email address and the Finance Broker knew that he would get in trouble for receiving offensive material through the company email. Management discovered the email error because the Finance Broker bragged about the pornographic material he had received by mistake in the email of another colleague. News of this reached management and the Finance Broker was given a second warning. However, despite the two previous warnings, the Finance Broker was still promoted in January 2019.

Sexually aggressive remark to a supplier of the company

In November 2019, the Finance Broker made a sexually offensive remark to a supplier from which he needed to get an invoice. When the supplier complained to the management, the Finance Broker was demoted. The company had issued the Finance Broker third formal written warning, and demoted him back to his Finance Broker role. He lost the responsibilities and privileges he had enjoyed in the higher position of Finance Consultant. He was also directed to acknowledge to the Chiefs that his behaviour was inappropriate and to apologise to anyone who had been offended. And he was told that his calls will be audited for three months to ensure no repeat of the same behaviour toward company suppliers.

Sexually suggestive meme posted on Facebook

Then, on 17 June 2020, the Finance Broker posted a meme on his Facebook account. It was an image of him and a female work colleague with a washing machine leaking soapsuds on the floor and the caption, “You pulled out, right?” and “Yeah, of course.” The Finance Broker claimed and the work colleague agreed at trial that the Finance Broker had first asked permission from his female colleague prior to posting the meme.

Retaliatory meme posted on Facebook

After the Finance Broker posted the meme however, the female colleague began receiving comments and responses that made her regret having given permission to post the meme. She then asked the Finance Broker to delete the meme. The Finance Broker complied.

After the Finance Broker deleted the meme, he posted a second meme on his Facebook account with a picture of himself and the words: “That moment after you’ve dropped a meme with the aim to upset some cunts…And you get to hear, cunts are upset.”

Disciplinary meeting

The next day, the Finance Broker was asked to attend a disciplinary meeting. At the meeting the Finance Broker was provided with a show-cause letter asking him to explain why he should not be disciplined for allegations of inappropriate workplace conduct. It was alleged in the letter that the meme used images that were taken in the workplace which were also meant to be used for workplace material.

Finance Broker refused to cooperate during the disciplinary process

During the meeting, on 18 June 2020, when the Finance Broker was asked to provide a written response to the allegations against him, the Finance Broker refused to provide a written response. He said that he did not believe that his actions of posting “funny” memes on his own personal Facebook account warranted the termination of his employment. He claimed that he ought not to be dismissed because of 7.5 years of excellent work performance.

Summarily dismissed for conduct that violates company policies

The next day, 19 June 2020, the employer dismissed the Finance Broker, finding that the posting of the sexually suggestive meme amounted to misuse of social media, misuse of company property, sexual harassment, and a failure to comply with the company’s sexual harassment and social media policies. Further, the employer found that the Finance Broker failed to act in the best interests of the company, his co-workers and customers. His pattern of behaviour was found to fall below the standards of behaviour expected on an employee. The words and images used on the Facebook meme that the Finance Broker posted were demeaning, sexist, discriminatory and defamatory. All these have caused the employer to lose trust and confidence in the Finance Broker.

Application for unfair dismissal

The Finance Broker filed an application for unfair dismissal and sought reinstatement and an order of continuity of service as well as payment of wages from the time of his unfair dismissal until he resumed work.

Workplace culture as defence

The Finance Broker questioned his summary dismissal asserting that his posting sexually suggestive memes on his personal Facebook account was just the kind of conduct that characterised the workplace culture and was seen as “normal” at their workplace. The Finance Broker did not think it was fair that he was sacked for behaviour that everyone else at work did and behaviour that had condoned in the past.

FWC found no factual dispute that conduct occurred

The Fair Work Commission (FWC) found that there was no dispute about the facts that constituted the alleged misconduct. The only question was whether the conduct of the Finance Broker merited his termination from employment. The FWC found that the posting of the meme and the posting of the second meme which was retaliatory constituted serious misconduct.

While the culture was below standards, company was reforming it

While it was true that the culture of the company fell below the standards expected of a workplace, the Finance Broker was repeatedly warned about his inappropriate behaviour. He was provided by the new managers with training in respect of the company policies and procedures. All these circumstances indicated that the company was taking steps to correct the inappropriate behaviour of its employees.

Inappropriate conduct was sufficient basis for termination

The Finance Broker’s conduct was not only inappropriate but also unlawful. He also showed a lack of insight and a lack of remorse throughout the proceedings. He did not even cooperate in the disciplinary process. Throughout the disciplinary process, he admitted to the conduct complained of but he consistently refuted that his conduct was severe or significant enough to warrant termination.

By comparing his actions to that of the General Manager, he shows a lack of understanding of the significance and effects of his action. Thus, while it was true that the culture of the workplace was “robust” still, the conduct of the Finance Broker was sufficiently serious and inappropriate to constitute a valid reason to terminate the Finance Broker’s employment.

Source:

Matthew Thompson v 360 Finance Pty Ltd [2021] FWC 2570

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