Julia Sutherland, Ashurst
Julia Sutherland, Ashurst

A ruling that an employer unfairly sacked a worker for tagging colleagues in sexually explicit material online highlights one of the complex HR hot spots employers are likely to face this year.

In August 2016, a Bendigo Health Care Group employee posted a video on Facebook of an obese woman in her underwear dropping her stomach onto the back of a man on his hands and knees, and made a comment that a colleague got "slammed" by another colleague "at work yesterday". He also tagged the two colleagues in the post.

The same day, the employee left blobs of sorbolene cream on one of the colleagues' desks.

That colleague complained about the two incidents, and the employer sacked the employee for serious misconduct.

He claimed his dismissal was unfair because he hadn't intended to post anything sexually explicit, there was no evidence the post put anyone's health and safety at risk, and the dismissal was disproportionate to his conduct.

He told the Fair Work Commission he had a history of sharing "blokey, crass and immature" posts with the colleague and that this post was no different. He also claimed the sorbolene cream was "just a practical joke" and wasn't intended to convey that someone had masturbated on the desk.

The employer argued that the employee showed no insight into the seriousness of the Facebook post, and that he placed the organisation's reputation at risk because a number of employees or former employees saw the post and knew where he worked.

Commissioner Michelle Bissett found the employee negatively affected the health and safety of colleagues, engaged in conduct that had the potential to damage the employer's reputation, and exposed his colleagues to humiliation and ridicule at work.

She said, however, that despite his "boorish" actions the decision to sack him was disproportionate to his misconduct.

"Even though the misconduct was serious, because of its one-off nature I am not convinced that it justifies the decision to terminate [the employee's] employment although I can appreciate why Bendigo Health reached the conclusion it did," she said.

Commissioner Bissett said reinstatement wasn't appropriate and sought further submissions from the parties about compensation.

Go back to basics

Ashurst counsel Julia Sutherland told HR Daily the Commissioner's conclusion was "unfortunately an example of what happens when you litigate".

"Ultimately a decision-maker like the Commissioner will hear the evidence and make a decision on whether they think [dismissal] is disproportionate to the conduct or not," she says.

A key takeaway from the case is that it's vital for employers to follow fair process relating to alleged out-of-hours social media conduct just as they would any other form of workplace misconduct, and then carefully consider whether termination of employment is proportionate to what has occurred.

"You've got to come back to basic principles."

Employers have a higher threshold to meet when considering whether out-of-hours behaviour warrants dismissal, but they shouldn't be discouraged from managing the issue, as the FWC has recognised their right to take disciplinary action, Sutherland says.

Growing social media risks

Employers continue to grapple with how to address misconduct that occurs via social media, and this is a compliance hot spot HR professionals must keep their eye on in 2017, Sutherland says.

Employers also face some new social media risks that have arisen in the past six months, she adds.

"One of those is managing concerns around security and safety in the workplace, in particular the possibility of employees who might sympathise with terrorist organisations and that interaction with the use of social media."

This was shown in the FWC decision of Singh v Aerocare Flight Support Pty Ltd, in which an employee was sacked for a number of posts on Facebook that purportedly supported ISIS. The Commission found, however, that the posts were sarcastic, and that he was unfairly dismissed.

A good starting point for HR professionals to protect their organisations is through education, Sutherland says.

"As an HR practitioner now, you're really required to make sure you're on top of what is a fair process and what is a lawful process when making decisions around performance management and disciplinary and dismissal decisions, and you need to be educating the people who make those decisions," she says.

"The people making decisions... need to be told about what those appropriate processes are so that they can implement that process in a way that minimises legal risks."

It's also important to focus on the business requirements when considering whether to terminate an employee's employment, Sutherland adds.

Register for our upcoming webinar, where Julia will explain other legal and compliance hot spots employers are likely to face this year, including the increasing use of accessorial liability provisions to prosecute HR and other managers, and the rise of individual rights regimes.

Renton v Bendigo Health Care Group [2016] FWC 9089 (30 December 2016)