Can you call your boss a ‘pig’ on Facebook? Unfair dismissal?

unfair dismissal

With a Legal Consolidated Employment Contract, you can sack your Employee if he calls you a pig on Facebook. No unfair dismissal

Stephen Campbell v Qube Ports [2017] FWC 1211

Stephen Campbell is a wharfie. His job is driving a big crane. He called his boss a ‘pig’ on Facebook. He also damaged a ship. It was not enough to sack him. He claimed unfair dismissal. According to the Fair Work Commission in Melbourne, his Employment Contract needed to refer to such Policies.

Stephen was sacked. He claimed unfair dismissal. The Fair Work Commission in Melbourne disagreed and taught Stephen respect. But only because the Employment Contract contained some unique protection for the Employer.

In a Legal Consolidated Employment Contract, you must follow procedures set by your Employer from time to time. However, few Employment Contracts contain this ongoing obligation. This was Stephen Campbell’s downfall.

The Employers policy included:

  1. be polite on Facebook when talking about your Employer
  2. don’t come to work with drugs in your system

Now, I hear you saying, “Brett, come on. Surely you don’t need to have an Employment Contract that expressly stops such terrible actions. Surely the law does not allow such behaviour?”

Well, you are wrong. The law protects only the Employee. Only one thing protects the Employer. That is the Employment Contract.

Employment Contract to the rescue

The Employment Contract stated that you could have a policy requiring the Employee to be polite on social media. This is when talking about your Employer. It allowed Deputy President Hamilton to say:

“It is a serious matter for an employee to publicly or semi-publicly call the Chairman of the company a ‘pig’. This is a rude and derogatory term carrying with it some contempt and hostility.”

What about Stephen’s drug problem? Grounds for unfair dismissal?

Again one would have thought it against the law to turn up with illegal drugs in your system. This is especially when you are operating huge cranes. Not so. The Employment Contract needs to be flexible enough to have a Policy prohibiting this. Legal Consolidated’s Employment Contract does. Stephen tested positive for amphetamines and opiates. This was contrary to the Employer’s Drug and Alcohol Management policy. The Policy, while changed from time to time, remained binding on the Employee. The Policy states that opiates and amphetamines are prohibited.

It was not of itself enough that Stephen damaged a ship and didn’t report the damage. It was not enough that Stephen denied causing the damage.

If you want to be able to sack a Stephen make sure you have a Legal Consolidated Barrister & Solicitor Employment Contract. You can build one online here.

Workplace Policies

Sacked for too many text messages

Lynda Murphy v Clear Day Pty Ltd [2022] FWC 373unfair dismissal sacking employee facebook employment contract

In this case an employee is not unfairly dismissed. This is for sending an excessive amount of text messages during work hours for her own business and an aggressive personal email from her work account, despite procedural fairness issues, the Fair Work Commission held.

The employee worked full-time as a Health, Safety, Environment & Training Manager. She also ran a farm stay on her
own property. This is becoming increasingly popular. The employee took phone calls and sent messages for
this business while at work.

Her boss told her to not operate her business while at work, to turn off her mobile telephone and not to take personal calls while at work.

The employee is dismissed after she continued to send a large number of texts while at work. The employee also sent an aggressive email from her work account for a family law matter. The employee applied to the FWC for a remedy for
unfair dismissal. She wanted her job back.

Commissioner Hunt found that there are a number of valid reasons for dismissal. The number of text messages sent by
the employee is “extraordinary and unacceptable”. “It is impossible to believe that Ms Murphy did any work at all”.

On one day, the employee had sent 76 text messages in about 5 hours.

Hunt C finds that the employee failed to perform her work to a reasonable standard. She “was deliberately failing to
follow a lawful and reasonable direction to have her phone turned off while at work”.

The email sent from the employee’s work email address for a family law matter also risked damaging the
employer’s reputation. There is no suitable explanation for the email coming from her work address.

The employer had not given the employee an opportunity to respond to the reasons for dismissal and the employee was not given a written warning. However, given the seriousness of the reasons for dismissal, the Commissioner found that on balance the dismissal was not unfair.

The application was dismissed.

Employee sacked for Facebook posts and attending illegal COVID-19 protest rally

Lichi v Industrial Relations Secretary (Department of Communities and Justice)
[2022] NSWIRComm 1011, 10 March 2022.

A child protection worker for the NSW government is compensated. This is following her sacking for attending a protest about COVID-19 restrictions. This is in breach of public health orders. And for making derogatory posts on her private Facebook page about the NSW government and senior officials’ response to the COVID-19 pandemic.

The NSW Industrial Relations Commission found the dismissal is not unjust or unreasonable. But that it is harsh. This is given her personal circumstances.

She is a Child Protection Caseworker. This is for for the NSW government. She is sacked in July 2021. This is after:

  • breaching public health orders by attending a public rally opposing stay at home orders for the COVID-19 pandemic, and
  •  posting on her private Facebook page in a manner that is “highly derogatory” towards the decisions of the NSW government and senior officials over the COVID-19 pandemic.

 

The employer said the posts did not treat others with dignity and respect. This is because her actions, conduct and behaviour:

      • fails to uphold the Government Sector Core Values and principles of Integrity, Trust, Service; and
      • Accountability under s 7 Government Sector Employment Act 2013 (NSW).

The employer also argues that she breached its Code of Ethical Conduct. This is for political and community participation, conduct while off duty, public comment and treating people with dignity and respect.

The Commission found that the decision is not unjust or unreasonable. This is on the basis that her attendance at the protest rally in breach of a public health order and her Facebook posts.

However, the Commission finds that the decision is harsh. He work performance is not a factor in the dismissal decision.

The Commission takes into account her personal circumstances. This is in the period leading up to her
dismissal.  It includes that she gave birth to her daughter in July 2020 and had developed post-natal depression and is significantly adversely affected by COVID-19 restrictions in NSW.

For 3 months after her dismissal, the applicant is “virtually without income”.

The Commission also acknowledged that the relevant period “was a time of confusing and conflicting information
circulating in society about the efficacy of vaccines that had been developed and the legality of public health orders”.

An order for reinstatement or reemployment is impractical. The employee had obtained another role in the private
sector at lower pay. The employer is ordered to pay compensation to the applicant of 12 weeks’ pay.

See also:

Telephone for help building the Employment Contract.


Legal Consolidated Barristers & Solicitors Australia Brett Davies

Adj Professor, Dr Brett Davies, CTA, AIAMA, BJuris, LLB, Dip Ed, BArts(Hons), LLM, MBA, SJD
Legal Consolidated Barristers and Solicitors
National Australian law firm

National:   1800 141 612
Mobile:      0477 796 959
Email:       [email protected]







medical_certificate in employment contract

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