26 April 2016
Don't be so thin-skinned: not all social media posts lead to dismissal
Imagine openly calling clients “spastics and junkies”. What about calling work colleagues “utterly useless people”? What if you described business processes as “utterly disgraceful” and said you are “embarrassed to work” in your employer’s business? Would you expect to keep your job?
Mr Starr made such remarks, and many more, on social media and lost his job. Mr Starr challenged his dismissal. The Fair Work Commission found Mr Starr’s dismissal to be unfair and he won his job back (Starr v Department of Human Services  FWC 1460).
On the surface, it seems a remarkable decision, and perhaps out of touch. However, the decision highlights some important features of the unfair dismissal regime and provides guidance on dealing with social media misuse.
At the time of his dismissal, Mr Starr had worked at Centrelink for 21 years, helping many recipients of social security benefits.
In his own time and on his own computer, Mr Starr habitually posted comments on social media under the name “mmmdl”. The forums frequented by Mr Starr were Whirpool, a site concerned with information technology, and Sportal, a sports website.
Some negative comments were made on Whirpool about the time for processing student benefits. The Department’s online media officer responded to these comments saying response times were usually 21 days but could be longer in busy periods. Mr Starr posted comments challenging his employer’s response, saying it took 42 days for a response. Despite his employer repeating its original message, Mr Starr posted “you need to stop giving this incorrect information”. Further exchanges occurred, with Mr Starr calling his employer’s timeliness “utterly disgraceful” and saying Centrelink’s responses were “ridiculous assertions”.
Mr Starr’s other posts included:
when talking about the English Super League, saying ‘ESL’ is code at the Department for appointments with “spastics and junkies”;
explaining the challenges of being a public servant “dealing with whinging junkies hour after hour”;
responding to comments about public servants being ‘deadbeat leeches’ by saying “I honestly have zero idea what all our managers do, especially the higher managers”; and
complaining about the payment of benefits to recipients whose “every 2nd certificate is for depression” and whilst conceding there are some genuine cases, Mr Starr said “here’s an idea, get a job, meet some people, bingo, you won’t be so depressed”.
The Department felt the comments demonstrated a fundamental lack of respect and professionalism towards the government, employees and customers. Mr Starr’s conduct, it said, represented “a significant breach of trust” even though his authorship of the posts was anonymous.
The Commission’s view
Vice President Hatcher of the Commission was cognisant of the fact that Mr Starr’s conduct occurred outside of work.
The Commission accepted the Department had a valid reason to dismiss Mr Starr for describing its operations as “utterly disgraceful”. Such comments were “clearly excessive”, VP Hatcher said. Unsurprisingly, referring to clients as “spastics and junkies” and comments about depression sufferers, were also entirely inappropriate.
But the Commission did not believe all of the posts warranted dismissal.
Mr Starr’s arguing with the online media officer was not worthy of sanction. “Merely disagreeing with a person does not mean that the person has been denigrated or treated disrespectfully”, VP Hatcher said.
Less emphatically, VP Hatcher did not believe adverse comments about colleagues and managers warranted dismissal. The comments were abstract rather than directed at a particular person; the Department had thousands of employees.
Despite a valid reason for dismissal, the Commission had to consider whether the dismissal was harsh, unjust or unreasonable, and the dismissal was found to be harsh. In forming that view, the Commission had regard to:
Mr Starr’s history as a competent employee;
the lack of evidence of any actual damage to the Department’s reputation;
Mr Starr’s genuine remorse and regret for his actions; and
the consequences of dismissal for Mr Starr in obtaining other employment after lengthy service with the Department.
“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”, VP Hatcher said. Although he was reinstated, as a sanction for his poor conduct, Mr Starr did not receive back pay. Mr Starr’s loss of six months was a signal “that conduct of the type he engaged in is unacceptable and not condoned by the Commission”.
Determining whether a dismissal is unfair is a balancing exercise over which minds may reasonably differ. So, what can we learn from this case?
Inappropriate conduct does not always justify dismissal even if it is objectively serious. Context and personal circumstances can mean a different sanction is warranted rather than dismissal.
Misconduct on social media is fraught with danger for employees. Employers should not be oversensitive to all negative remarks on social media. “Employees are entitled to dislike their jobs and to say so publically”, VP Hatcher said. Seeking to prevent gossip and ordinary day-to-day banter “would be about as successful as Prohibition”, as the NSW Commission remarked (McDiarmid v Commissioner of Police  NSWIRComm 100).
Even though Mr Starr won his job back, social media savvy employees should not take comfort from the decision. The Commission has not given free licence to express all views unrestrained. For employers, avoiding these uncertainties begins with good preventative measures like a clear social media policy and regular training on appropriate behaviours.
Author: James Mattson