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Out-of-Hours Conduct: Does it Justify Dismissal?
The Fair Work Commission (the “FWC”) recently heard two cases where although the circumstances were similar, the outcome was not. The cases involved two employees, employed by the same employer, who were part of a group on Facebook. In this group individuals shared offensive content including pornographic, sexist and racist material. The group was comprised of 12 current employees, three former employees and three non-employees.
The individuals within the group posted material both during, and outside of, working hours. Upon becoming aware of the conduct, the employer dismissed two employees who subsequently made unfair dismissal claims.
The cases (which were heard by the FWC together) raise a number of consistent themes around the issue of out-of-hours conduct, the importance of employers to clearly and robustly communicate acceptable standards of behaviour and to ensure consistency of treatment for similar conduct.
The first case – dismissal upheld
The first case related to the employee who created the Facebook group and made a number of posts, including posting:
- pornographic material;
- comments referring to colleagues using inappropriate language; and
- racist material.
The employer alleged that the posts were in breach of the employee’s contract of employment and its policies, including its Bullying and Harassment policy, Code of Conduct and Social Media Standard.
The FWC found that the majority of the posts were made out-of-hours, and did not constitute a valid reason for dismissal in circumstances where:
- the Facebook group did not name the employer;
- the Facebook group did not use the employer’s equipment;
- some of the comments were “tongue in cheek”;
- some of the comments reflected how blue-collar employees talk to each other; and
- the Facebook group was a private chat which was not accessible by the public.
However, the FWC took a different approach in relation to the conduct that occurred during working hours, specifically, the distribution of pornography via the Facebook group. The FWC held that this was not appropriate while at work and being paid, could cause serious damage to the reputation of the employer and was a valid reason for dismissal.
The second case – dismissal overturned
The second case related to an employee who was also a member of the Facebook group and made a number of posts, including posting:
- pornographic material; and
- a photo of an old bicycle with a fire extinguisher placed on each side of the bicycle rack behind the seat, with reference to a new work vehicle that had been purchased by his manager.
Much like the first case, the employer alleged that the posts were in breach of the employee’s contract of employment as well as its policies.
Similarly, the FWC again found that the majority of the posts, save for the photo of the bicycle, were made out-of-hours and therefore could not constitute a valid reason for dismissal.
Further, the FWC also found that the post that was made during work hours did not warrant the penalty of termination, and rather commented that the post was “funny” in the context.
The FWC found that the employer treated the dismissed employee differently from how it treated another employee who was also part of the Facebook group and, in the FWC’s view, posted comments that were more offensive. This employee was not investigated or subject to any disciplinary action.
The FWC found that the dismissal was unjust and unreasonable, and ordered that the employee be reinstated and backpay awarded.
The two cases highlight how nuances in factual circumstances can lead to very different outcomes. While an employer may consider certain out-of- hours conduct to be inappropriate and in breach of an employee’s contractual obligations, this will not always be the case. An employer’s response to out-of-hours conduct must be carefully considered to ensure a fair process is undertaken and any disciplinary action is appropriate in all of the circumstances.
Kirryn West James, Director
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19 May 2022