- Tristan Garcia, Senior Associate, Allens
- Jo Seto, Lawyer, Allens
Mr Remmert was employed as a maintenance fitter by Broken Hill Operations Pty Ltd (BHO). He was dismissed following an incident in which he made derogatory comments about a supervisor on Facebook. Outside of working hours, one of Mr Remmert’s co-workers posted a photo on Facebook of a BHO employee wearing a cap with an exaggerated peak. This was a reference to a supervisor at BHO. In response to the photo, Mr Remmert commented, ‘I’ve seen f***w**s with bigger peaks on their caps’. Mr Remmert was one of 12 BHO employees who liked the post and one of five employees who commented on the photo.
BHO conducted an investigation into the post, concluding that the comments made by Mr Remmert were intended to belittle and ridicule the supervisor. BHO decided to terminate Mr Remmert’s employment after considering:
- a summary of the investigation into the Facebook post;
- a confidential report (the contents of which were not disclosed to Mr Remmert); and
- the fact Mr Remmert had previously received a final warning in relation to bullying conduct.
Mr Remmert claimed his dismissal was unfair, arguing that the comments were not made in reference to the supervisor and had been posted outside work hours.
The Fair Work Commission (the Commission) concluded that BHO had a valid reason for the dismissal. The Commission was satisfied that there was a relevant and sufficient connection between Mr Remmert’s out of hours comments on Facebook and his employment. This was because many of Mr Remmert’s Facebook friends were also BHO employees and because the photo uploaded was of a BHO employee and was posted by a BHO employee. It was also relevant that Mr Remmert had previously received a final warning for similar bullying conduct.
However, the Commission went on to find that there was significant procedural unfairness in the decision-making process, which ultimately meant the dismissal was unfair. During the hearing, BHO’s Senior Human Resources Officer described the confidential report as being relevant to the investigation. Given these comments, the Commission said that it was probable that this information, along with the earlier warning given to Mr Remmert, contributed to the ultimate decision to dismiss him. Since the report was never provided to Mr Remmert and he was never afforded an opportunity to respond to its contents, his dismissal was harsh and unreasonable.
The Commission awarded Mr Remmert compensation of $28,471, deciding that reinstatement was not appropriate in the circumstances, particularly since Mr Remmert had not expressed any contrition and had continued to deny the Facebook comments were directed at the supervisor.
HOW DOES IT AFFECT YOU?
- Employees’ social media commentary may give a valid reason for their dismissal if the comments have a relevant and sufficient connection to their employment.
- Employees should be provided with an opportunity to respond to all materials relevant to the employer’s decision to terminate their employment, including comments made on social media.
Allens workplace relations team works closely with its clients to ensure that their human resources strategies, policies and procedures achieve ‘best practice’ in a way that is consistent with their business objectives. Its experienced team provides clients with the full spectrum of workplace relations services throughout Australia and Asia to help minimise workplace issues, protect corporate reputation and promote clients as employers of choice. They offer clients workplace visits to advise on potential health and safety risks (including personal liability for directors and corporate officers).