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Have you stopped and thought about the impact that having no Social Media Policy could actually have on your organisation? Take the case of Stutsel v Linfox Australia Pty Ltd.

In April 2012, a truck driver at Linfox, was dismissed for serious misconduct. His termination came as a result of comments posted on his Facebook profile concerning two of his supervisors, which were racially derogatory and sexual in nature. The main issue in the case was whether the man’s actions constituted serious misconduct. A further issue was whether the termination was harsh, unjust and unreasonable. The truck driver sought to be reinstated to his position.

The court highlighted that at the time of the incident Linfox did not have any social media policy and further it still remained without a policy at the time of the hearing. Commissioner Roberts commented about the lack of policy that “in the current electronic age, this is not sufficient and many large companies have detailed social media policies and have taken pains to acquaint their employees with those policies.”

While the court found that the truck drivers comments were distasteful and regrettable it was held that he was not guilty of serious misconduct and there was therefore no valid reason for his termination. The court also noted the inequitable treatment of Mr Strustel, The truck driver,  as some other Linfox employees who had posted comments on his wall had not received the same treatment. For this reason the termination was also held to be harsh, unjust and unreasonable.

If a social media policy had been in place the conduct may have constituted serious misconduct and thus warranted termination.

Submissions by the Applicant

  • During the Arbitration proceedings, the Applicant gave sworn evidence and submitted a witness statement which stated (among other things) that:
  • His wife and his daughter had set up his Facebook account;
  • he thought that Facebook was a place where he could privately interact with a group of people who he had accepted as Facebook ‘friends’;
  • He was told by his wife and his daughter that they set up his account with full privacy restrictions and that to his knowledge, nothing he said or did could be seen by anyone but the people he had invited to be his Facebook ‘friends’;
  • He was not sure how one of his managers was able to access his Facebook account as he did not, nor did his wife or his daughter change his privacy settings; and
  • He was not aware of any Company policy regarding Facebook, other than a general direction that it should not be accessed during work time (as opposed to breaks).

Submissions by the Company

The submissions made on behalf of the Company argued that the derogatory comments breached:

  • The implied terms of the Applicant’s contract of employment, which provided that he:
  • Act with good faith and fidelity;
  • Had breached the required obligation of trust and confidence;
  • Promote his employer’s business interests; and
  • Not take any action which would damage his employer;
  • The Company’s Workplace Diversity policy; and
  • Clause 6.1 of the Equal Opportunity and Diversity statement contained in the Linfox Red Book Induction which was provided at the Company’s induction program, which the Applicant had participated in.

Decision

Commissioner Roberts concluded and found that:

  • At the time of the Applicant’s dismissal, the Company did not have any policy relating to the use of social media by its employees;
  • Even by the time of the hearing, it still did not have such a policy;
  • The Company relied on its induction training and relevant handbook to ground its action against the Applicant; and
  • In the current electronic age, this was not sufficient as many large companies have published detailed social media policies and have taken pains to acquaint their employees with those policies. Whereas, the Company did not.

Consequently, it was held that:

  • There was no valid reason for the termination as the Applicant was not guilty of serious misconduct; and
  • The termination of the Applicant’s employment by the Company was harsh, unjust and unreasonable.
  • Therefore the Company was ordered to:
  • Reinstate the Applicant to his former position, with full continuity of employment; and
  • The Applicant be compensated.
  • This case should be a reminder to all employers that social media policies should not be seen as luxuries but as necessities. Comprehensive social media policies not only set guidelines for the online conduct of employees during and after work hours but they may protect an employer against unfair dismissal claims.