An ever-increasing key dilemma for employers in the modern age is how to deal with the misconduct by staff through their use of social media platforms.
The list of potentially offending conduct is lengthy. For example, staff might call in sick but then post details of their activities on social media. Employees could post inappropriate, defamatory or confidential information on their accounts. One high-profile example is the sacking of a PayPal executive in 2014 who publicly ranted about his co-workers on Twitter, or more recently the well publicised matter regarding Israel Folau and his instagram post.
Given such a potential minefield, we look at what employers should do to ensure a fair investigation relating to allegations of social media misconduct.
procedural fairness key in australian case
The matter of Singh V Aerocare Flight Support Pty Ltd  FWC 6186 highlights the importance of ensuring that an investigation is thorough and involves appropriate levels of procedural fairness. This requirement applies in social media misconduct, as in all other cases.
Mr Singh was dismissed from his role as a baggage handler in October 2015. Although the reasons for his dismissal were not made immediately clear to him, after proceedings had been issued in the Fair Work Commission, the employer alleged that Mr Singh had breached its social media policy by publicly supporting ISIS and known associates.
It was also claimed that he had made radicalised comments against the Australian Government. Of particular relevance and concern was Mr Singh’s status as an airline employee.
Before he was terminated, Mr Singh was advised that there had been complaints involving his social media posts and that there would be an investigation. However, Commissioner Hunt found no evidence that Mr Singh was told he could bring a support person to the investigation meetings. Further, although the termination related to a number of posts on social media, Commissioner Hunt accepted that not all posts were shown to Mr Singh for his response.
Factors in the decision
Relevant factors taken into account by the Commission in determining whether conduct occurring away from the workplace can invoke disciplinary action, include conduct that is:
- Likely to cause serious damage to the employer/employee relationship; or
- Damaging to the employer’s interests; or
- Incompatible with the employee’s duty as an employee.
Before the Commission, Mr Singh’s evidence was to the effect that he was against ISIS and radical Islam, and that his comments had been sarcastic.
the outcome of the case
It was concluded that the employer had not spent sufficient time investigating whether or not Mr Singh was in fact opposed to ISIS. Commissioner Hunt accepted, that if there had been sufficient evidence to demonstrate that Mr Singh had a radicalised perspective on Islam, there would have been too great a risk for an employee with these views to continue working at the airport.
However, it was determined that in the circumstances the employer should have gone to greater effort to investigate Mr Singh’s Facebook newsfeed. If that had occurred, it was considered that it would have been clear that Mr Singh’s claimed sarcasm was the true motivation behind his postings.
Accordingly, the Commission determined that, if a proper investigation had taken place, it would have been apparent that Mr Singh was not radicalised. Therefore, Mr Singh’s dismissal was deemed harsh, unjust and unreasonable.
Instead of terminating his employment, it was considered that an appropriate disciplinary action commensurate with the misconduct would have been reiterating the social media policy of the employer and insisting that Mr Singh refrain from posting incendiary material.
need help in ensuring a fair investigation?
This case demonstrates the importance of undertaking a thorough and considered investigation before taking serious disciplinary action. In unfair dismissal claims, the Commission will not hesitate to award judgments in favour of the applicant where it is determined that the employment was terminated in a manner that is not procedurally fair.
If you would like to ensure your investigation process is fair and enforceable, WISE Workplace provides investigation services, as well as ‘conducting workplace investigations’ training.