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Personal circumstances trump valid reason in controversial social media dismissal

By Kristin Ramsey13 Apr 2016

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Employee use of social media during their personal time has again come to the forefront as a result of a controversial decision of the Fair Work Commission to reinstate a Centrelink employee who referred to clients as “junkies” and "spastics” in online chat forums.

Over a course of 3 years Mr Starr made approximately 60 comments in online chat forums(during his personal time and whilst using an alias) which the Department of Human Services claimed breached organisational policies, brought the Department into disrepute and caused reputational damage.

Mr Starr’s conduct included:

  • making derogatory comments about Departmental staff and clients;
  • making negative comments about the Department’s policies and procedures;
  • encouraging members of the public to complain to their local MP about Centrelink processing delays;
  • stating that he was “embarrassed” to work for the Department; and
  • criticising the government.

Whilst Mr Starr admitted that he had engaged in the conduct, he argued that dismissal was unfair in the circumstances.

The Commission found that 6 out of the 60 online comments (including the comments which were derogatory towards clients and also indicated he was embarrassed to work at the Department) provided a valid reason for dismissal as they were in breach of the Department’s policies.

Despite finding that there was a valid reason for dismissal and that the Department had engaged in a procedurally fair investigation process in the lead up to the dismissal, the Commission found that there were a number of mitigating factors that ultimately rendered the dismissal to be harsh and unfair.

Those factors included:

  • the Department was not able to demonstrate that it had suffered any actual reputational damage as a result of Mr Starr’s conduct (in this respect it was relevant that the comments  were made in online forums with limited members and no complaints had been made to the Department in relation to the comments);
  • many of the comments relied upon by the Department to justify the dismissal did not breach Departmental policies and/or were justified under the implied freedom of political communication;
  • the comments that did breach Departmental policy were at the lower end of the spectrum in terms of their seriousness; and
  • Mr Starr’s personal circumstances - including:
    • his admissions during the investigation and the remorse shown for his actions;
    • his long and otherwise unblemished employment record spanning 21 years;
    • his mental health status and the positive impact his employment with the Department had on managing his depression and anxiety; and
    • the difficulties he would face in finding new employment.

In light of the above factors the Commission found that termination was a disproportionate response to Mr Starr’s actions and therefore resulted in an unfair dismissal.

You can access a copy of the decision here: Starr v Department of Human Services [2016] FWC 1460

Note that the Commission’s decision to reinstate Mr Starr has been stayed pending determination of an appeal filed by the Department earlier this week.

This decision has sparked considerable public debate and comment particularly given the resources spent by the Department in investigating Mr Starr’s actions and the Commission’s willingness to reinstate an employee that was highly critical of their employer in a public setting.                

I recently spoke with David Curnow on ABC Radio regarding the decision and some of the issues that employees and employers face in relation to the interaction between personal social media use and employment. Click here to listen to that conversation.

The decision highlights the need for a clearly articulated social media policy as well as regular training for all staff on the business’ expectations.

A fair, transparent and effective grievance procedure can also help to provide a vehicle for staff to voice concerns without needing to resort to more public forums.

Business’ should seek advice on the extent to which they can lawfully and reasonably restrict an employee’s personal social media use before attempting to regulate such use in a policy or when considering termination as a consequence of online activity. 

If you or your organisation requires any assistance in regards to employee use of social media please contact Kristin Ramsey.