Perth Airport baggage handler sacked over a 'sarcastic' ISIS post

What happened

Mr Singh started work with Aerocare Flight Support, a national aviation ground handling company, on 18 August 2014. He was a casual Airline Service Agent, which is Aerocare's title for a baggage handler, working regular shifts at Perth Airport. He held an Airport Security Identification Card, which let him work in the security-sensitive parts of the airport.

He was also a prolific Facebook user, posting under an alias with his own photo. On 4 October 2015 he shared a post from HT Australia, an Islamic political group with radical tendencies, about a demonstration in Sydney, and added the words 'We all support ISIS'. Two supervisors who were his Facebook friends reported it to management that day.

That evening he was suspended on pay. Aerocare passed the post to the Australian Federal Police, and the airport operator was also made aware. At meetings on 6 and 8 October he admitted the post, said he did not support ISIS, said the comment was sarcasm aimed at the group, and apologised. He also said that, as a Sikh, he had written strongly against Islamic extremism when he lived in India. During a 10-minute break in the second meeting, managers decided by phone to stop offering him shifts, which ended his employment.

The claim

Mr Singh, who represented himself, applied to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth) for an unfair dismissal remedy. He argued that his posts were political, were made away from work and never mentioned Aerocare, so they could not breach its social media policy. Aerocare argued that publicly supporting a terrorist group was a valid reason to dismiss someone with access to aircraft and baggage.

Why: the legal test

A dismissal is unfair if it is harsh, unjust or unreasonable. In deciding that, the Commission must weigh the factors in s 387, including whether there was a valid reason related to the worker's conduct, and whether the worker was told of the reason and given a fair chance to respond.

When the conduct happens outside work, the long-standing test from Rose v Telstra applies. An employer can rely on out-of-hours conduct only in limited cases: where it is likely to seriously damage the employment relationship, where it damages the employer's interests, or where it is incompatible with the worker's duties.

Commissioner Hunt rejected Mr Singh's argument that the post had nothing to do with work. Mr Singh accepted that the post was on his own page, not in a private group. Co-workers knew who he was, and a single report to the media or the authorities could have harmed Aerocare. The Commission found the post breached the policy's warning against publications that 'may have the result of' harming Aerocare. If Mr Singh had actually supported ISIS, the Commissioner said, there would plainly have been a valid reason, wherever the post was made.

What the Commission decided

Even so, the Commission found there was no valid reason in the circumstances. Aerocare relied on several posts, but its own witnesses later conceded that two of them did not breach the policy, and two others were never shown to Mr Singh. That left only the ISIS post, which a proper look at his Facebook feed, or a written explanation from him, would have shown was not a genuine statement of support. The Commissioner estimated that this would have taken no more than one or two hours.

Instead, the decision-makers were given a short phone summary, and one of them was not even told that he had apologised. The Commission found that nothing Mr Singh could have said would have changed the outcome, and that Aerocare had not considered any lesser penalty, such as a final warning. The dismissal was harsh, unjust and unreasonable.

That was not a clean win for Mr Singh. Commissioner Hunt called the post ridiculous and said: 'It is not witty. It is not funny.' He warned that airport workers cannot post apparent support for a terrorist group and explain it away as sarcasm.

How much was awarded

Mr Singh did not want his job back. Under s 392, one of the main factors in setting compensation is what the worker would have earned had they not been dismissed. Because Mr Singh kept posting even after his suspension, the Commission found his casual job would probably have ended within eight weeks anyway. At about $1,000 a week, that was $8,000.

Section 392(3) requires compensation to be reduced where the worker's misconduct contributed to the dismissal, even if there was no valid reason. The post was misconduct, though not serious misconduct, so the Commission cut the amount by 40%. Aerocare was ordered to pay $4,800, less tax.

What this means for you

If you work in a security-sensitive job, a post on a personal account under another name can still be treated as conduct connected to your work. Being 'only joking' is no shield, and even a successful claim may be reduced for your own misconduct.

If you are an employer, the case shows the cost of rushing. Put every post you rely on to the worker, investigate their explanation properly, make sure the decision-makers hear all of it, including any apology, and consider a warning before dismissal. If you have been dismissed, the time limit to apply to the Fair Work Commission is 21 days.