Worker unfairly dismissed despite “crude” Facebook post

The recent case in the Fair Work Commission of Colby Somogyi v LED Technologies Pty Ltd is a useful reminder of the steps an employer must take to avoid a finding of unfair dismissal.

So often in cases before the Commission, there is no doubt that an employee has behaved badly. However, owing to the fact that the employer has not followed correct procedures in dealing with the behaviour, the Commission finds against the employer and orders that they pay compensation and (in some cases) that the employee be reinstated in their former role.

In Colby Somogyi v LED Technologies Pty Ltd, travelling salesperson Mr Somogyi was dismissed for putting a post on Facebook during work hours which suggested that a woman at his mother’s workplace had provided sexual favours to her boss to win promotion (“how much of the boss’s c**k did you suck?”).
This post was seen by a number of employees in Mr Somogyi’s own workplace who brought it to their Managing Director’s attention. The MD promptly fired Mr Somogyi by telephone call.

In finding that Mr Somogyi had been unfairly dismissed (and awarding him $6,000 compensation) the Fair Work Commission noted that there was no evidence that Mr Somogyi had been provided with a copy of the company’s social media policy (which outlawed social media posts during work hours). It also placed great weight on the fact that Mr Somogyi had not been given any real opportunity to address the findings against him before a decision to dismiss had been taken (the telephone call where he was dismissed lasted only about a minute).

The case illustrates a couple of important points: Firstly, whilst workplace policies are very important, they are worth very little if they are gathering dust on a bookshelf or hidden away in the depths of your intranet. Employees should be regularly reminded of the contents of policies and the employer should keep records that they have been read and understood and (in appropriate circumstances) training should be given in relation to them.
Had the employer in this case been able to show that Mr Somogyi was aware of its policy on social media not being used during work hours, the result might have been different.

Secondly – and this point arises again and again – it is essential that before a decision is taken to dismiss an employee they are given an opportunity to address the allegations against them. Without evidence of giving an employee a “fair hearing”, a finding of an unfair dismissal is very likely to follow.

 

By Warwick Ryan, Partner, SWAAB Attorneys

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