The Case

Mr Somogyi was employed by LED Technologies Pty Ltd (LED) for 13 months as a sales representative. Mr Somogyi’s employment was summarily terminated by LED in August 2016 following a Facebook post he made on his Facebook page. The post stated:

I don’t have time for people’s arrogance. And your [sic] not always right! [Y]our position is useless, you don’t do anything all day how much of the bosses c--k did you suck to get were [sic] you are?

Mr Somogyi then took down the post and replaced it with a second update so there would be no ‘misunderstanding’.

The second post indicated Mr Somogyi’s mother had been bullied and pushed out of her workplace because ‘there is a new girl s---ing/f---ing the boss’ and that ‘this new girl has got into my mums [sic] position by being a w---e … I am sick of pathetic people’s arrogance and all the bull---t that people do to others for no reason’.

When LED became aware of the post, the Managing Director of LED telephoned Mr Somogyi to notify him he had been dismissed. The Managing Director did not inform Mr Somogyi of the reasons for his dismissal at that time, simply stating: ‘it doesn’t matter, you’re fired’.

Mr Somogyi did not know the Facebook post was the reason for his dismissal until he read LED’s response to his unfair dismissal claim.

LED Technologies argued that the dismissal was not unfair as:

• Mr Somogyi had made the post during work hours;
• the post was directed at the business and one of its employees;
• the post was ‘clearly inappropriate’;
• Mr Somogyi had breached LED’s social media policy, which banned inappropriate use of social media at work; and
• the views expressed by Mr Somogyi did not fit with LED’s objective to promote a safe working environment free from harassment, sexual abuse and victimisation.

Mr Somogyi in response indicated that:

• he had made the post during a work break;
• he was unaware of LED’s social media policy;
• he was unaware of the rules about accessing social media during work hours;
• the language used was not offensive as similar language was used by employees in the workplace;
• he was not informed of the reason for the dismissal prior to being dismissed and hence was not given an opportunity to respond; and
• the post was not directed at LED but at his mother’s employment situation and workplace.

Verdict

In finding that the dismissal was unfair, the Fair Work Commission (FWC) found:

• there was no evidence that Mr Somogyi was not on a work break at the time he made the Facebook post;
• there was no evidence that Mr Somogyi knew or had been given a copy of the LED social media policy;
• while the content was inappropriate, crude and immature, there was no valid reason for dismissal given the post was not directed at LED, its employees or customers and was directed at Mr Somogyi’s mother’s situation and workplace;
• LED had failed to provide Mr Somogyi with an opportunity to respond; and
• despite the offensiveness of the language used, it appeared such language was part of LED’s workplace vernacular.

The FWC awarded Mr Somogyi $6,238 compensation.

Lessons for you

It is important when serious matters are reported to you that you calmly investigate and consider them prior to making any decision to terminate an employee’s employment. Knee-jerk reactions can result in legal claims and cost your business significant amounts of time and money. It can also affect the reputation of your business.

Even if the conduct appears to be abhorrent and worthy of summary dismissal, you should stand the employee down on pay while you promptly investigate the allegations. You should always allow the employee an opportunity to respond to the allegations prior to making any decision to dismiss.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.