In Starr v Department of Human Services [2016] FWC 1460, Vice President Hatcher provided some commentary on the circumstances in which employers are entitled to dismiss employees for conduct that they engage in outside of work hours.
The facts
Mr Starr was a Centrelink customer service officer who had been employed by the Department of Human Services for more than 20 years. By all accounts he was an excellent employee. He was, in his spare time, an active participant on social media forums such as Whirlpool and Sportal. When using these forums, he engaged in debate with other participants about the processing times for social security benefit applications sent to the Department. In so doing, he made a number of disparaging comments about the Department and its clients. He was subsequently dismissed by the Department.
When will social media posts constitute grounds for termination?
Vice President Hatcher explained that conduct “outside of working hours”, such as posts on a personal social media account, will only constitute grounds for the valid termination of an employment contract if it is so grave or serious that it amounts to a “rejection or repudiation of the employment contract by the employee”. But such circumstances are limited where:
- “the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or
- the conduct damages the employer’s interests; or
- the conduct is incompatible with the employee’s duty as an employee.”
The fact that the relevant conduct is in breach of a social media policy or code of conduct will not of itself be sufficient.
Were Mr Starr’s comments sufficiently grave or serious?
Vice President Hatcher found that three of Mr Starr’s comments were sufficiently serious to justify termination. These included a comment that the clients of the Department were “spastics and junkies” and that processing times at the Department were “utterly disgraceful” and that he was “embarrassed to work there” as a result.
Despite having a valid reason, the dismissal was still unfair
Even though Vice President Hatcher found that the Department had a valid reason to dismiss Mr Starr as a result of his serious comments, the dismissal was still found to be unfair as there were relevant matters which mitigated the seriousness of Mr Starr’s conduct. In so doing, Vice President Hatcher took into account Mr Starr’s length of exemplary service at the Department, the fact that the reputation and interests of the Department were not actually damaged, and the fact that the comments were not made in a deliberate attempt to undermine the interests of the employer.
Lessons for employers
Vice President Hatcher’s decision suggests that employers should not proceed to termination unless they are satisfied that the comments were serious, deliberate and have caused or are likely to cause actual damage to the employer’s interests or reputation. The mere fact that the comments are disparaging or in breach of a social media policy is unlikely to be enough.
How can JFM Law help?
If you are an employer looking to dismiss an employee for misconduct or an employee who feels that your employer has unfairly dismissed you for misconduct, contact JFM Law on (02) 9199 8597 for a no obligation chat or email us.
The information contained in this post is current at the date of editing – 14 May 2024.
