Complex Arena of Social Media Postings and Employee Dismissal

A recent case in the Fair Work Commission provides some useful guidelines as to when it is appropriate to dismiss an employee for inappropriate postings on social media sites, particularly in relation to a government employee.

In the case of Starr v Department of Human Services [2016] FWC 1460 an employee (Mr Starr) was dismissed for a range of postings on private media sites over a three year period.

It was accepted that the posts were in relation to the following-
• Providing specific guidance and advice on payments and services offered by the department to members of the public online;
• Criticising the government;
• Encouraging members of the public to complain to their local MP’s about the service levels of the department;
• Negative comments about the policies and programmes of the department;
• Derogatory comments about departmental ‘Managers’ and more broadly, the department;
• Disclosing non-publically available information about delays in processing payments;
• Berating members of the Social Media team publically on ‘Whirlpool’;
• Derogatory comments about customers of the department, including referring to customers as ‘spastics and junkies’

Mr Starr made multiple posts which came to the attention of Centrelink who then conducted an investigation and advised Mr Starr of his possible termination and gave him the opportunity to explain why he should not be terminated. Centrelink ultimately terminated Mr Starr’s employment stating that he had breached the Australian Public Service Code of Conduct which stated,
“An APS employee must at all times behave in a way that upholds:
(a) the APS Values and APS Employment Principles; and
(b) the integrity and good reputation of the employee’s Agency and the APS.”

The APS also had a Social media policy that stated in relation to posting on private social media sites that –
• “you are mindful that your behaviour is still bound by the APS Values and Code of Conduct – even outside work hours
• you don’t make comments that are obscene, defamatory, threatening, harassing, discriminatory or hateful to or about your work or about another person or entity”

Because the conduct occurred outside of work time in order for the employer to take disciplinary action for this conduct the following had to exist (in accordance with the case of Rose v Telstra Corporation Limited )

“It is clear that in certain circumstances an employee’s employment may be validly terminated because of out of hours conduct. But such circumstances are limited,:
• 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

In essence the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee.”

The court goes on to say that- “However, the scope of employer control over private conduct may be greater in the case of public servants whose employment is regulated by statute. This was recognised by the Federal Court (Finn J) in McManus v Scott-Charlton.” The reasoning is that where a government agency is concerned there is an expectation that they conduct themselves at a higher standard than non-government agencies.

In assessing whether it was appropriate for Mr Starr to be fired the court looked at all of his comments posted on social media sites and made the following decisions-
1. On one site an authorised social media poster for the department, called Flick, repeatedly gave the wrong time frame for processing of a student application as 21 days and Mr Starr repeatedly corrected the post by saying it was changed to 42 days and after saying this multiple times stated about Flicks posts that it was “ridiculous assertions” in relation to the timeframe. The court did not find this breached the departments Code of Conduct as he was not disclosing confidential information and he did not speak in a disparaging way about Flick.
2. On another occasion he posted that- the time taken to process payments as “utterly disgraceful” and said he was “embarrassed to work there … and there isn’t a damn thing those of us in the offices can do about it”. The Court accepted that this did breach the departments Dode of Conduct as it did not uphold the good reputation of the Department.
3. In two posts Mr Starr referred to clients of the Department as being “spastics and junkies”, and the court accepted that this breached the Code of Conduct because it did not uphold the Department’s value of providing “respect to all people.”
4. In two posts Mr Starr made comments concerning clients seeking exemption from the work search requirements of Newstart on the basis that they suffered depression, but conveyed it in such a way that suggested a very large proportion of them were not genuine. The Court held that, “Mr Starr’s comment was expressed in such excessive terms as might engender a doubt as to whether a depression sufferer would be treated fairly and impartially by the Department. Again, the post made it apparent that “mmmdl” (Mr Starr) was speaking from his experience as an employee of the Department. In making these comments, Mr Starr failed to uphold the Department’s integrity and reputation in breach of its Code of Conduct.”
5. On multiple posts Mr Starr criticised some of the Government’s decisions in relation to Centrelink. Centrelink argued that this was a breach of the requirement to act in such a way that “must not lead the audience to suspect the employee is unable to undertake their duties impartially”. The Court held that-
“This might happen if, for example, a departmental secretary, a policy advisor, a ministerial staff member or a senior diplomat publicly and emphatically criticised the government of the day. However, in the case of the vast majority of public servants who perform routine administrative tasks (such as Mr Starr), it is difficult to envisage any circumstance in which the robust expression of political views and criticism of the government outside of work could have an impact on the performance of their duties.”
6. Mr Starr also posted the Department having “our share of utterly useless people” and him having “zero idea what all our managers do, especially the higher managers”. The court held that this did not involve him being “disrespectful” to fellow employees in contravention of the Code of Conduct because the comments were expressed in the abstract rather than pointed at any particular person, related to a department which has thousands of employees, and were made in the context of an exchange in which Mr Starr was reacting to and rejecting another person’s comment about public servants being “deadbeat leeches.”

Once the court had made a finding as to the behaviour of Mr Starr that it considered inappropriate and to have breached the Department’s Code of Conduct it then had to decide if dismissal was the appropriate course of action.

The court then looked at the following factors-
1. Length of Mr Starr’s service- 21 years continuous employment
2. The quality of his service – he was described as a conscientious and competent employee by other staff members, including his manager and there was no evidence to suggested that he acted in any way other than impartially
3. The lack of evidence that the Department’s reputation was actually damaged,
4. Mr Starr’s clear and genuine remorse and regret for his conduct
5. Mr Starr did not intentionally seek to damage the Department’s reputation but his comments were situational in relation to other people’s posts. It was accepted that he made them, “impulsively and out of frustration and not maliciously.”
6. The dismissal of Mr Starr has had particularly harsh personal consequences for him. His job with the Department is the only job he has had since he was 19 years old. He has no qualifications which would assist him in gaining other employment.

The Court held that- “having regard to my findings concerning whether there was a valid reason for Mr Starr’s dismissal, it is clear that APS determined to dismiss Mr Starr based on a range of findings about his conduct which were, to a significant degree, unjustified. That raises a serious question as to whether Mr Starr would have been dismissed at all if the findings concerning his conduct had properly been confined to those limited matters which I have found constituted a valid reason for his dismissal, and had not wrongly been characterised as involving a deliberate and deceptive effort to bring the Department into disrepute. I consider it likely in that circumstance that lesser disciplinary sanctions would have at least been considered by the Department, and that a quite different outcome which allowed Mr Starr’s employment to continue but ensured that his misconduct would not be repeated may have ensued.

The FWC found that the dismissal was harsh and ordered re-instatement and said that, “although I consider dismissal was a disproportionate response to this conduct, it was conduct which was worthy of a lesser but still significant disciplinary response. The significant financial loss which Mr Starr has suffered since his dismissal will thereby operate as a suitable sanction for his conduct. It will also serve as a signal to him, other employees of the Department and the public that conduct of the type he engaged in is unacceptable and not condoned by the Commission.”

This case highlights a number of factors. The Department had a good foundation to their action in that they had a Code of Conduct and a Social Media Policy. this was a good starting point and a necessary precursor to disciplining an employee in relation to social media posts. If your workplace does not have a Social Media Policy then you can purchase a template from EEO Specialists.

The Department appeared to follow an investigative process that followed the principles of natural justice. In order to ensure your workplace does this it is important to have a legally sound Complaint Management Policy and Procedure and qualified grievance officers who know how to conduct a workplace investigation.

Where the Department ultimately fell down was in assessing some behaviours as constituting a breach of their Code of Conduct (when they weren’t) and in dismissing the employee, in preference to providing a serious penalty that was not dismissal. In circumstances where the allegations are serious and a possible penalty is dismissal it can be benefical for an Employer to outsource the investigation to a legal practitioner who is versed in collecting evidence and weighing the evidence up to make a finding of fact.