Australia: Unfair Dismissal, Facebook and Public Holidays: August update of Workplace Relations

Contents

• Facebook sacking upheld by Fair Work Australia
  Michael Cooper
• You want me to work on a public holiday! That's unreasonable – or is it?
  Stewart Rickevich and Meryl Remedios
• Defending the use of a drug and alcohol policy
  Zev Costi
• New Equal Opportunity Act for Victoria

Facebook sacking upheld by Fair Work Australia

The growth in the use of social media continues to present difficulties for employers in managing their employees' social media activities.  This is especially the case when managing reputational damage that may be caused by an employee's social media activities outside of working hours.  In a well publicised decision, Fair Work Australia has recently upheld an employer's decision to dismiss a retail worker for his facebook tirade.

What happened?

In this case, the employee had worked for a large retail chain for more than three years.  From 1 January 2010, the employee's role changed so that he worked under a different commission structure.  For three periods of around four weeks between January and May 2010, the employer did not pay the employee his correct commissions.  On the first two occasions, the non-payment was rectified.  However, after exchanging emails with the operations manager who was responsible for paying commissions, and having discussions with her, the employee became frustrated in relation to the third occasion for which the non-payment had not been rectified.  One night at home, the employee posted a facebook status update reading:

[the employee] wonders how the f--k work can be so f--king useless and mess up my pay again.  C--ts are going down tomorrow.

The employee had about 70 facebook friends, and around 11 of these were work colleagues.  The employer was subsequently informed about what had been posted on facebook by one of the work colleagues, and the employer formed the view that the post breached its policies and procedures, and constituted a threat to the operations manager.

When the employee attended for work the next day, he had a meeting with his manager to discuss the facebook post.  The employer ultimately dismissed the employee and provided him with three weeks' pay in lieu of notice – despite the fact that the employer alleged the employee had engaged in serious misconduct, and the employee applied to Fair Work Australia for an unfair dismissal remedy. 

What did Fair Work Australia find?

In considering the employee's application for an unfair dismissal remedy, a senior member of Fair Work Australia stated:

The fact that the comments were made on the [employee's] home computer, out of work hours, does not make any difference.  The comments were read by work colleagues and it was not long before [the operations manager] was advised of what had occurred.  The [employer] has rightly submitted, in my view, that the separation between home and work is now less pronounced than it once used to be.

Fair Work Australia considered the fact that the employer did not have a specific policy dealing with an employee's social media activities outside of work.  Despite the lack of a policy however, the employer was able to rely on other policies dealing with harassment and bullying to support its decision to dismiss the employee.

Fair Work Australia ultimately found that the employer was justified in dismissing the employee for his facebook post, despite his frustrations in relation to pay issues, as the post demonstrated that the employee had complete disrespect and disregard for the operations manager, and it constituted a threat to the operations manager.

Key lessons for employers

This case highlights that an employee's conduct out of work, including through social media platforms, can have a material impact on the employer's business.  As such, in some circumstances, this conduct can be used to justify the dismissal of an employee.

Employers should take steps to ensure that, as far as possible, they are protecting their business, brand and reputation by putting in place reasonable policies and procedures dealing with an employee's use of social media which may have an impact on the employer's business.  Doing so will not only assist to avert damage to the employer's business, it will also assist to demonstrate that employees are aware of their obligations in relation to social media activities if problems arise in the future.

You want me to work on a public holiday! That's unreasonable – or is it?

In the first decision of its kind, Fair Work Australia has considered whether an employee's refusal to work on a public holiday was reasonable in an application for an unfair dismissal remedy.  The case arose when an employee was summarily dismissed after failing to attend work on Christmas Day and Boxing Day as his employer had requested. 

What does the Fair Work Act say?

Under the Fair Work Act 2009 (Cth), an employer can only request that an employee work on a public holiday if that request is reasonable.  However, if an employer has made a reasonable request for an employee to work on a public holiday, the employee can only refuse the request if their refusal is also reasonable.

What happened?

The employer provides recycling and waste collection services for small and large business and local government authorities.  The employer's business operates 365 days of the year, necessitating some work on weekends and public holidays.

In late November 2010, the employee informed his employer that he was not available to work on the 2010 Christmas and Boxing Day public holidays.  The employee had made plans to spend these days with his wife away from the city approximately six months prior to the public holidays occurring.  The employee had made these plans based on his belief that following an internal transfer 12 months prior, the area in which he was working was one where he was not required to work public holidays.

On 10 December 2010, the employee was informed of the requirement to work on the Christmas and Boxing Day public holidays.  One week later, the employee stated that he would not work on those public holidays.  The employee consistently stated that he was not obliged to provide a reason for his refusal to work on the public holidays and refused to provide a substantive reason, other than that his employer could not require him to work on public holidays.

Unsurprisingly, the employee failed to attend for work on the 2010 Christmas and Boxing Day public holidays.  The employer followed an appropriate disciplinary policy, and ultimately dismissed the employee for failing to follow a lawful and reasonable direction to work on a public holiday.

What did Fair Work Australia find?

During the hearing of the employee's application for an unfair dismissal remedy, the employee's reasons for refusing to work on the public holidays became apparent.  The employee had refused to work on the public holidays due to:

• his family responsibilities, including his wife's ill health and her lack of a driver's licence necessitating him being available on the public holidays
• his mistaken belief that his transfer meant that he no longer had to work on public holidays.

Fair Work Australia found that the employer's requests for the employee to work on the Christmas and Boxing Day public holidays were reasonable.  However, Fair Work Australia also found that the employee's refusal to work on the public holidays was reasonable too.  It came to this view based on the reasons the employee provided during the hearing for his refusal to work on the public holidays.  Despite the finding of Fair Work Australia in this case however, it found that ordinarily, where an employee has good reason for refusing their employer's request to work on a public holiday but does not explain those reasons to the employer, then the refusal by the employee is likely to not be considered reasonable.

In assessing whether the employee had been unfairly dismissed, Fair Work Australia also had regard to the fact that whilst it was made plain to the employee that if he did not work the public holidays as requested there would be disciplinary action taken against him, there was no evidence presented by the employer that the employee was specifically informed that his refusal could lead to the termination of his employment.

Given that Fair Work Australia found that the employee's refusal to work on the public holidays was reasonable, it followed that the employee had not failed to follow a lawful and reasonable direction.  Accordingly, Fair Work Australia ultimately determined that the dismissal of the employee was unfair, and he was awarded over $12,500 in compensation.

Key lessons for employers

Employers should ensure that they are aware of the right of an employee to be absent from work on a public holiday, and that a request for an employee to work on a public holiday, or an employee's refusal to work on a public holiday, must be reasonable. 

This case demonstrates that in ascertaining whether a request or a refusal is reasonable, no single factor will be determinative.  However, where an employee has good reason for refusing their employer's request to work on a public holiday but does not explain those reasons to the employer, then the refusal by the employee is likely to not be considered reasonable.

Defending the use of a drug and alcohol policy

A recent decision of Fair Work Australia has highlighted the importance of employers implementing appropriate drug and alcohol policies and testing regimes.  In finding that an employee was unfairly dismissed for a breach of such a policy, Fair Work Australia has also reiterated the importance of ensuring procedural fairness when dismissing an employee for such a breach.

What happened?

In the case, the employee, employed as a heavy vehicle driver, logged into his shift smelling of alcohol, acting unsteady and slurring his words.  Upon noticing the employee's obvious impairment, the employer immediately sent the employee home and, later that day, decided to terminate his employment for serious misconduct (although the decision was not communicated to the employee).  The decision to terminate the employee's employment was made without conducting any drug or alcohol testing, and was based on the assumption that the employee was obviously impaired by alcohol.

When the employee attended work for his next rostered shift two days later, he was informed that his employment was terminated.  The employee subsequently applied to Fair Work Australia for an unfair dismissal remedy.

What happened at Fair Work Australia?

The employee gave evidence that the night before the incident, he had attended his local hotel and had three or four pots (schooners) of heavy beer and a meal.  He said that he had not had a drink after 8.00 pm and that if he appeared under the influence of alcohol, it was because he was tired, it was very early in the morning and he was suffering from fatigue due to working long hours.

Although the employee denied attending for work under the influence of alcohol, Fair Work Australia found that the employer had a valid reason for terminating the employee's employment, namely that the employee attended for work with alcohol on his breath and intended to drive a vehicle with a Blood Alcohol Content level greater than 0.00%.

Despite finding there was a valid reason to dismiss the employee however, Fair Work Australia held that the dismissal was unfair as it was procedurally deficient.  Specifically, the employee was not given the opportunity to respond to the allegations before a decision was made to terminate his employment, and was not afforded the opportunity to undertake a drug and alcohol test in order to defend himself.  As a result, the employee was awarded $10,360 in compensation.

Key lessons for employers

This decision is yet another reminder that the existence of seemingly compelling grounds for the termination of an employee's employment does not override the requirement to afford the employee procedural fairness.

This decision is also a reminder for employers to consider implementing, and to ensure adherence to, appropriate policies regarding alcohol and drug testing.

If an employer wishes to implement drug and alcohol policies and procedures, it is critical to ensure that the policies and procedures are tailored to meet the requirements of the employer's business whilst balancing these requirements against privacy concerns of employees.  At a minimum, employers should ensure that any such policies address the following considerations:

• the method of testing that will be employed
  will the employer use urine testing, saliva testing, breathalyser testing or some other method?
• how the testing will be administered
  will the testing be random, scheduled or for cause?
• who will administer the testing
  does the employer have the resources to conduct the testing in house, or will it be outsourced?
• whether the regime will focus on rehabilitation or punishment
  is the policy designed to punish non-compliance, or to address risks?
• the consequences of refusing or failing to submit to a test
  will the employee be suspended or disciplined, or will a refusal be deemed to be a failure?
• the consequences of breaching the policy
  will the employee be suspended or disciplined, or will the employer implement rehabilitative action?
• the employer's obligations under specific legislation
  employers in certain industries, such as mining, rail, aviation and road transport may have specific legislative obligations with which they must comply.

New Equal Opportunity Act for Victoria

Employers in Victoria are reminded that the new Equal Opportunity Act 2010 (Vic) (Act) started to operate from 1 August 2011.  Details of the changes which arose as a result of the Act starting to operate are set out in our previous update.

Employers should ensure that they are now familiar with their obligations under the Act, and that they have taken steps to implement the necessary changes to their policies, procedures and employee training to ensure compliance with those obligations.

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This report does not comprise legal advice and neither Gadens Lawyers nor the authors accept any responsibility for it.