The employee (“the Employee”) worked as a call centre employee for the Australian Council of Trade Unions (“the ACTU”) in Victoria.
On 21 September 2021, an ACTU Director (“the Director”) discovered posts by the Employee on its Slack platform and his personal Facebook account that it considered offensive, homophobic, antisemitic, mocked domestic violence and allegedly encouraged the flouting of lockdown restrictions. That same day the Director instructed the Employee to attend a zoom meeting the next morning to discuss “unacceptable conduct that may amount to serious misconduct” (the Zoom Meeting). The Director said that the Zoom Meeting would deal with “statements/posts on social media, and the future of your employment“.
On 22 September 2021, during the Zoom Meeting the ACTU summarily dismissed the Employee after six years of employment for serious misconduct, finding his explanations inadequate and the posts “completely inconsistent” with its “clear and unambiguous values and policies“. The Employee made requests for the Zoom Meeting to be recorded, or for the allegations against him to be put in writing. The ACTU General Manager and Director refused this request on the basis that doing so would prevent the ACTU from dealing with the matter in an expedient way.
Prior to the Employee’s dismissal, the ACTU had issued two warnings in writing to the Employee on 8 March 2018 and 9 August 2021 regarding his behaviour, including a final warning for failing to remove images of naked and topless women from his workstation.
The Unfair Dismissal Application
On 8 October 2021, the Employee lodged an application to the Fair Work Commission (“the FWC”) alleging that he had been unfairly dismissed from the ACTU (“the Unfair Dismissal Application”) pursuant to s 394 of the Fair Work Act 2009 (“the Act”).
In the Unfair Dismissal Application, the Employee contended that he had been the subject of harassment, bullying, and discrimination by the Director and the ACTU senior management. He claimed that the Facebook posts on his personal profile were “proven and justified as valid, credible, and sincere political, religious, and cultural exhortations” and “satirical commentary and critique”. The Employee further argued that the ACTU had denied him procedural fairness by failing to give him a proper opportunity to respond to the allegations.
The ACTU made submissions that the posts were contrary to the values of the ACTU which include solidarity, respect, equality and democracy. The Director gave evidence that the ATCU supports LGBTQIA + people, justice for First Nations People, campaigning for the elimination of gendered violence and supporting people of colour and has a public position on these issues. The ACTU also had a clearly articulated public position supporting vaccination and other measures recommended by public health experts.
The Legal Issue
The issue before the FWC was whether the ACTU’s dismissal of the Employee was harsh, unjust, or unreasonable, and whether the ACTU’s alleged procedural failings could amount to an unfair dismissal.
Deputy President Masson (DP Masson) of the FWC held that any procedural unfairness by the ACTU did not outweigh the Employee’s breach of obligations to his employer for several key reasons.
(i) Inconsistency with ACTU Position
DP Masson clarified that the Employee’s personal views were not ‘on trial’. Rather, the question for determination was whether the Employee’s out-of-hours conduct on a personal and public social media account – was contrary to his obligations to the ACTU, and therefore constituted serious misconduct and established a valid reason for dismissal.
DP Masson found that the posts did establish a valid reason for dismissal as they were “utterly inconsistent” with the ACTU’s position, and furthermore, he found it “almost inconceivable” the Employee could genuinely believe otherwise.
(ii) Offensiveness of Posts
DP Masson held that the Employee ought to have understood the offensive nature of his posts. This was particularly considering his use of a word that is regularly used as an alternative to the highly offensive ‘N’ word”.
Despite the fact that the Employee’s Facebook profile did not identify him as an ACTU employee and there was no evidence that the Employee expressed the views in the course of his employment, DP Masson found that the Employee breached his obligations under the ACTU’s code of conduct and its harassment, discrimination and workplace bullying policy.
The posts were also found to potentially damage the reputation of the ACTU and were contrary to their values of respect.
(iii) Procedural Unfairness does not outweigh breach by Employee
Despite the fact that the Employee’s conduct provided a valid reason, DP Masson held the ACTU did in fact deny him procedural fairness by failing to give him a proper opportunity to respond.
DP Masson held that the ACTU failed to put the allegations in writing, only gave the employee 24 hours between notifying him of the misconduct and dismissing him, and did not provide the Employee with details of what codes of conduct and polices he was in breach of.
DP Masson found that the lack of procedural fairness was the only factor supporting the Unfair Dismissal Application, and placed greater weight on the valid reason the ACTU had for summary dismissal.
It is important to understand the potential consequences of posts made on private social media accounts. A person’s personal beliefs may come into conflict with their employer’s public position. However, notwithstanding this, employment policies often contain clauses that require employees to refrain from publicly contradicting their employer’s public position or values. Social media posts that contain politically divisive, offensive, or violent material may fall foul of such policies and result in disciplinary action up to and including termination of employment.
In this case, the Employee’s posts on social media were found to be in breach of the code of conduct and policies of his employment, and inconsistent with the values of his employer.
If you require assistance with unfair dismissal proceedings or assistance reviewing your employment policies, please do not hesitate to contact Nick Stevens, Luke Maroney, Daphne Klianis or Josh Hoggett.