Sunday, 23rd AprUnfair to sack worker for "crude" Facebook post

Colby Somogyi v LED Technologies Pty Ltd [2017] FWC 1966 (6 April 2017
 

The FWC has awarded $6,000 compensation to a travelling salesperson who was unfairly dismissed for making a "crude" and "immature" Facebook post suggesting a woman provided sexual favours to her boss to win a promotion.

Commissioner David Gregory accepted it was inappropriate to make the post, which asked "how much of the boss's c--k did you suck?"

However, he concluded that LED Technologies Pty Ltd's decision to dismiss the salesperson was unfair because the comment was not directed at it or anyone employed by the business.

Managing director abruptly fired worker after post

LED Technologies dismissed the sales representative in August last year after it was alerted to the post, which said, "I don't have time for people's arrogance. And your [sic] not always right! [Y]our position is useless, you don't do anything all day how much of the bosses c--k did you suck to get were [sic] you are?

The employer's managing director contacted the sales representative and told him to immediately return his company property.

When the salesperson asked why he was being dismissed, the managing director allegedly told him "it doesn't matter, you're fired."

The salesperson took down his original post and followed it up with a second reworded status update to clarify his meaning, so there was no "misunderstanding".

The updated post referred to his mum being bullied and pushed out of the workplace because "there is a new girl sucking/fucking the boss" and that "this new girl has got into my mums [sic] position by being a whore".

The post continued, "I am sick of pathetic people's arrogance and all the bullshit that people do to others for no reason."

The salesperson said he was unaware that his Facebook post was the catalyst for his dismissal until he read LED's response to his unfair dismissal claim.

Clearly inappropriate post made during work time, says employer

LED Technologies argued that because the employee posted during work hours and directed it at the business, one of its employees or customers, it was "clearly inappropriate".

It said that it valued its employees and that the salesperson overstepped the mark when he posted the derogatory remarks.

It maintained that the salesperson's views did not fit with its objectives of promoting a safe working environment free of harassment, victimisation or sexual abuse.

LED Technologies also claimed the salesperson breached its social media policy, which bans inappropriate use at work.

Salesperson claimed he posted during break

The salesperson said that he posted on Facebook during his break and that he was unaware of LED's policy governing social media use and access at work.

He said he was only aware of a confidentiality agreement he had with LED and denied breaching its social media policy.

The salesperson also argued his dismissal was unfair because he was not given an opportunity to respond.

He said the telephone conversation with his manager lasted "less than a minute" and when he asked why he was "fired", the call ended.

LED Technologies' managing director acknowledged that he did not give the salesperson "much of a chance to respond", because he believed he was "lying".

Crude, immature remarks not directed at company, employees

Commissioner David Gregory said it was "undoubtedly clear the salesperson's comments were "crude" and "immature".

However, he accepted the employee worked flexible hours and there was no evidence suggesting he was not on a break at the time he posted about his mother's situation.

The commissioner continued there was also no evidence confirming that the company gave the salesperson a copy of its social media policy.

Further, Commissioner Gregory said the post was not directed at the employer, its employees or customers, and this called into question the legitimacy of the company's decision to dismiss the salesperson.

"While its content was undoubtedly crude and immature the fact it was not directed at LED Technologies, or any of its employees, makes it harder to understand why it can be said to have provided a valid reason for [the salesperson's] dismissal," he said.

Commissioner Gregory noted "obvious issues" in the manner of the dismissal, including LED Technologies' failure to give him any real opportunity to respond to its decision to dismiss him and its limited HR expertise, and awarded him $6,238 compensation.

He pointed out that it was unlikely the post, which was the salesperson's attempt to support his mother in the workplace, would achieve its desired effect.

He also noted that "regrettably" references that are "offensive" and "vulgar" are increasingly part of the vernacular and that LED Technologies' concerns about the robust language in the post were "tempered" by the fact that similar language was used in its workplace.