In the case of Singh v Aerocare Flight Support Pty Ltd [2016] FWC 6186, the Fair Work Commission awarded a Perth airport baggage handler $4,800 in lost wages for his Unfair Dismissal claim. The baggage handler had posted on Facebook “We all support ISIS”. As a result, he was dismissed by his employer. The employee had breached his employer’s social media policy.
In the employee’s defence, he made the Facebook post in a closed group that was not linked to the airport of his employment. He also wrote under a pseudonym and said that the comment was a sarcastic one made in the context of an ongoing online conversation. Further, when his employer discovered his comment, the employee offered to delete the post and even his Facebook account altogether.
Despite the employee’s please for forgiveness, however, the employer decided to immediately dismiss him.
Per s 385 of the Fair Work Act 2009 (Cth), an employer may become liable for an Unfair Dismissal claim if they dismiss an employee in a manner that is “harsh, unjust or unreasonable”. In the present case, Aerocare Flight Support Pty Ltd was found to have dismissed the baggage handler in a manner that was “harsh, unjust or unreasonable”.
The employee had posted an immoral comment on Facebook that was intended to be a funny joke but wasn’t. However, this was not enough to justify his dismissal. Working in the employee’s favour was that he was not actually a terrorist or a supporter of terrorism. Further, as already mentioned, he made the Facebook post under a pseudonym in a closed Facebook group. These mitigating factors meant that an immediate dismissal of the baggage handler, without any other instances of poor conduct or poor work performance, was unjustified. It was “harsh, unjust or unreasonable”.
Lessons to be learnt for employees:
Unfair dismissal lawyers recommend you get legal assistance even when you are an employee at fault because you may still have legal rights and entitlements. Here, the baggage handler was initially at fault for his Facebook post. However, his employer then took the extreme step of dismissing him, and so became liable for the Unfair Dismissal claim. His employer would have been justified in disciplining the baggage handler, but not dismissing him.
Lessons to be learnt for employers:
Your employees may be immoral and breach your social media policies, but you should still seek legal assistance before dismissing an employee, in case you then become liable for an Unfair Dismissal claim or some other claim. In general, it helps to be considerate of employees’ mind-sets at the time they make social media posts – they may not realise the impacts of their comments on social media. Perhaps if the baggage handler had made the Facebook post in a public Facebook group or page and identified himself as an airport employee, he may have been justifiably dismissed. However, please seek legal assistance, even in such an extreme situation, to know your legal obligations.
Do not hesitate to contact one of our unfair dismissal lawyers, Perth if you have any queries regarding this article.
