Online misconduct requires broad disciplinary response

Thursday, 16 February 2017 7:07am

Employers that refer to the broader organisational impacts of social media misconduct when deciding on disciplinary responses might be better placed to defend their actions, an employment lawyer says.

A recent unfair dismissal ruling illustrates the potential downsides of taking a limited approach to incidents of online misconduct, Ashurst counsel Julia Sutherland tells an HR Daily Premium webcast.

The case involved a baggage handler who wrote Facebook posts that allegedly supported ISIS and Islamic extremism. These included a shared video of a Muslim saying Islam would destroy Britain; a shared post from a group called "Sikh Feed" that said those who don't contemplate the books of Allah are "false"; a shared post on which he commented, "we all support ISIS"; and a post criticising Prime Minister Malcolm Turnbull's response to the shooting of a police employee by a radicalised teenager.

Concerned employees notified managers and the employer suspended the worker pending an investigation, then sacked him shortly after for breaching its social media policy.

"Many people would think that working in the airline industry as a baggage handler would almost in itself provide a valid reason for dismissal, but this case gives some pertinent lessons about how to investigate allegations of this nature and how to frame the reason for dismissal," Sutherland says.

In her decision, Commissioner Jennifer Hunt noted that, given the employee's responsibility for and access to aircraft baggage facilities, she would have no hesitation in finding valid grounds for dismissal had the posts purporting to support ISIS been made in earnest. She also rejected the worker's argument that the posts did not relate to his employment because he made them during his personal time away from the airport.

"[So] if in fact there was a post that was legitimate that expressed support for ISIS, then given his role as a baggage handler near aircraft, [the Commissioner] would have found there was a valid reason for dismissal. That is: there was a sufficient connection between the personal views expressed by [the employee] and the employment," Sutherland says.

But the Commissioner accepted the worker's argument that the posts were sarcastic and his comments had been misinterpreted.

"In particular, Commissioner Hunt made note of the fact that during Aerocare's investigation into the allegations, Aerocare did not make any effort to accept [the] explanation that the posts were sarcastic, or undertake further investigations into [the employee's] Facebook post history," Sutherland says.

The Commissioner said that further investigations would have clearly shown the employee was not a supporter of ISIS or religious extremism.

"That underscores the importance of a thorough investigation into the allegations, including receiving and considering a response by the employee," Sutherland says.

In particular, the Commissioner criticised the short time – about 10 minutes – afforded between the employee's responses and the decision to dismiss him.

"Commissioner Hunt stated that it would have been more appropriate for Aerocare to have continued his suspension, distributed notes of the meetings to relevant decision-makers, and make further enquiries in relation to his Facebook account.

"The key is that if there was some evidence or suggestion that the posts could have been sarcastic, it was incumbent upon the employer to investigate those," Sutherland says.

The Commissioner accepted the ISIS post did breach Aerocare's social media policy, and that the employee had received relevant training in relation to that policy, but given his explanation, found that didn't warrant his dismissal.

Security concerns were relevant

"Importantly in this decision, the employer dismissed [the employee] because of his breach of a social media policy, and not a concern for security or safety," Sutherland notes.

"The real thing here, and the reason I think they dismissed him, was a concern for the security at their workplace and safety of workers and others – and that doesn't seem to have been part of the [recorded] decision-making.

"It seems to have been more focused around the policy itself."

Sutherland cautions employers against viewing social media as "its own little area" while ignoring the broader impacts of misconduct.

"It's like any out-of-hours conduct that has some connection with employment – you need to think about why that is so detrimental to the ongoing employment relationship, and that needs to be the reason for the [disciplinary] decision.

"If you identify that, I think you'll put yourself in a better position to defend any decisions, because it will more appropriately reflect the reasons why you found the conduct to be so inappropriate."

The case also emphasises the importance of keeping an open mind and considering and investigating all of the explanations provided by an employee – even if the employer is sceptical, she says.

Sutherland's compliance 'hot spots' webcast goes into further detail on growing areas of social media risk, and covers increasing use of accessorial liability provisions, the rise of individual rights regimes, and challenges posed by the sharing economy.

HR Daily Premium members can watch the webcast in full, while free subscribers can upgrade here for access.

Singh v Aerocare Flight Support Pty Ltd [2016] FWC 6186 (13 September 2016)

Online misconduct requires broad disciplinary response

Security concerns were relevant

Related links