Out of hours social media use and its interaction with the employment relationship has once again come up in the context of an unfair dismissal application. Thompson v 360 Finance Pty Ltd follows a number of other decisions of the Fair Work Commission (FWC) where the out of hours misuse of email and social media has been deemed to be a valid reason for dismissal.

Background

Matthew Thompson had been employed by 360 Finance Pty Ltd (360 Finance) as a finance broker since February 2013. He was summarily dismissed on 19 June 2020 for serious misconduct, in that he had posted an offensive meme to his Facebook account which contained a sexual connotation with reference to a female employee at 360 Finance. He later deleted the meme at the request of the colleague concerned but then made another offensive post. Importantly, work colleagues were able to see Mr Thompson’s Facebook posts.

Despite the fact that there was little factual contest, Mr Thompson asked for reinstatement, continuity of service and payment of wages from the date of his dismissal to the date of resumption of work.

Mr Thompson’s argument

Mr Thompson argued that his conduct had to be understood in the context of the workplace culture at 360 Finance. He stated that highly sexist and racist behaviour had long been tolerated in the workplace and that nothing had ever been done with respect to it. That being the case, he felt that his conduct had been singled out.

Mr Thompson argued that the employee concerned had consented to the posting of the Facebook post and that she had previously consented to other similar posts.

He also argued that he had been given a number of final warnings in the past with respect to performance and conduct and that this evidenced that the Respondent had effectively waived its right to terminate him.

He further argued that he was not afforded a proper opportunity to respond and that 360 Finance had already made up its mind to terminate him regardless of any response he would give.

360’s argument

360 Finance refuted any suggestion that it had a culture of tolerance towards bad behaviour in the workplace.

It was further submitted that despite the fact that an investigation process had afforded him the opportunity to respond,  Mr Thompson elected not to respond to a show cause letter that he had received and did not engage meaningfully with the process of investigation into his conduct.

The decision

Deputy President Lake found that there was a valid reason for dismissal related to Mr Thompson’s conduct.

While it was accepted that there was a ‘robust’ workplace culture, it was also accepted that the culture within the organisation was in the process of reform as evidenced by the conduct of workplace training dealing with appropriate workplace conduct.

While it was found that Mr Thompson originally had permission to post the meme, it was also observed that once requested to delete the post, he took some time to do so and then made another post which was arguably retaliatory.

The FWC also accepted that the dismissal was procedurally fair and that while Mr Thompson had found it difficult to find work since the dismissal, this was not in itself determinative.

Mr Thompson’s application was dismissed.

Consistency with previous decisions

Importantly, this decision is consistent with a number of other decisions made by the FWC with respect to out of hours conduct on social media platforms.

In O’Keefe v Williams Muir’s Pty Ltd T/A Troy Williams The Good Guys, the FWC found that summary dismissal was appropriate and for a valid reason where an employee had made violent threats against a colleague on Facebook.

In Colwell v Sydney International Container Terminals Pty Ltd, the employee concerned sent a pornographic video to a number of work colleagues through Facebook messenger outside of his working hours. He was dismissed, even though there was no formal complaint. The FWC found that there was a valid reason for dismissal, especially because of the connection to work.

Practical Implications

The case once again highlights that out of hours conduct of employees is not necessarily immune from disciplinary procedures. Provided there is a sufficient connection to the workplace, the FWC will most likely find that where there has been a clear breach of policy and serious misconduct, there was a valid reason for dismissal.