This update examines two recent decisions of the Fair Work Commission (‘FWC’) concerning firefighters who were dismissed by their employer after they shared pornographic videos and photos in a private Facebook group titled “Sickos Video Sharing Group”. The group’s members were a mix of current and former employees as well as non-employees. The two applications were brought by two employees of the same employer and had their cases heard together. The cases provide illustrative examples for employers in assessing whether an employee’s private social media activity is sufficiently connected to the employment to justify action being taken by the employer.

Background

The “Sickos” group page, which was at the centre of these two cases, had fifteen current and former employees of the Respondent employer (and three others) as members.  The page featured an array of pornographic videos and photos, racist jokes, and general work-related posts.

A senior firefighter (‘the first firefighter’), who was the applicant in the first case, created the private group and personally shared hundreds of sexually explicit videos and photos on the page.  Importantly in this case, the first firefighter posted some of the pornographic material during his work shifts. He also engaged in other allegedly inappropriate conduct including:

• posting work-related comments, including that he “will blackmail” the regional manager as he was a union delegate;
• referring to a female ex-employee as “FART”, an acronym which combined the words “Fat Arse” with the ex-employee’s initials;
• calling colleagues who left the group after being joined unwillingly “soft cocks” and “pussies”; and
• posting several racist jokes.

Another firefighter (‘the second firefighter’), who was the applicant in the second case, posted multiple sexually explicit photos to the page outside work hours, including one photo which contained three women’s naked buttocks with a caption demeaning to women.  The second firefighter posted only one photo during work hours, which was of an old bicycle with fire extinguishers attached, and which the employee argued was a joking reference to a new fire truck which a supervisor had secured.

It is relevant to the decisions to note that a third firefighter, and member of the group, posted an allegedly pornographic video outside of work hours, as well as a misogynistic joke that Commissioner Riordan described as “an outrageous slur against overweight women.”

The employer became aware of the “Sickos” group page after a female employee, who was not a member of the group, submitted a complaint attaching screenshots and screen recordings of the explicit posts.  The complaint was made after the female employee’s father, who was also a staff member and a member of the group, showed her the material on the page.

The first and second firefighters were ultimately dismissed for serious misconduct, and on the basis that they had contravened the Employer’s bullying and harassment policy and social media standard.  The third firefighter retained his job without disciplinary action.

The Decisions

Commissioner Riordan found that the first firefighter‘s posts which were made outside of work hours lacked the requisite connection to work and could not be relied on by the employer as a valid reason for dismissal.  Commissioner Riordan said workers are “entitled to a private life” and much of the contents of the first firefighters posts were “nothing more” than an “example of how male blue-collar employees talk to each other”. In the same vein, the Commissioner found the first firefighter’s commentary regarding colleagues who left the group to be “simply friends ‘taking the piss’ out of each other”, rather than bullying or harassment.

It is interesting to note that the Commissioner made these findings despite submissions from the employer that it was endeavouring to address challenges in its workplaces, which is a historically male-dominated, blue-collar industry and in which it is a challenge to recruit and retain female firefighters. The employer said it considered that the conduct of the firefighters was contributing to a hostile environment for women and its efforts were being hampered by a “boys club” culture.

Ultimately, in the first decision, Commissioner Riordan held that the first firefighter’s conduct in distributing pornography during working hours satisfied the definition of serious misconduct and so found he was not unfairly dismissed.

In the second decision, relating to the second firefighter, Commissioner Riordan found the employer had a valid reason to dismiss the second firefighter, but only in respect of the photo posted during work hours of the old bicycle.  In relation to that photo, the Commissioner accepted that the post breached the employer’s bullying and harassment policy.

However, on the basis that the employer treated the third firefighter differently to the second firefighter, when his posts were equally, if not more, offensive than the images posted by the second firefighter, Commissioner Riordan found that the second firefighter’s dismissal was unjust and unreasonable, and ordered the reinstatement of the second firefighter.

Lesson re policies and training

In what is a particularly instructive lesson for employers arising out of the decision relating to the first firefighter, Commissioner Riordan said:

“I have taken into account that the [first firefighter] did not receive any training in relation to the Respondent’s Social Media and Standards Policy before he was terminated. Further, the training practices of the employer appear to be along the lines of self-taught, tick and flick approach – which is simply not appropriate and lacks the educational rigour and outcomes of face-to-face training.”

The employer was also criticised for failing to provide the content of offensive material to the second firefighter when requested, which resulted in Commissioner Riordan labelling the employer’s investigation and dismissal process as “haphazard and unsatisfactory”.

Key take-aways

These decisions are highly instructive for employers as social media continues to become increasingly intertwined with workplace conduct. The decisions make it clear that the mere creation of workplace policies that deal with social media and out of hours conduct on social media is insufficient, particularly where the training on those policies lacks the appropriate educational rigour.

If you wish to strengthen your social media policy or better understand employee obligations outside of working hours, contact one of Aitken Legal’s specialist employment lawyers today.