Tuesday, 18 May 2021

Fair Work Commission upholds sacking over inappropriate memes

After seven years of employment, 360 Finance summarily dismissed an employee as a result of social media posts, which included a sexually explicit meme involving a female colleague.

The meme, which was posted to the employee’s personal Facebook page, showed him and the female colleague with a picture of a washing machine leaking suds onto the floor accompanied by lewd and sexually suggestive quotes.

The employee initially had permission from his colleague to post the meme. However, he later deleted it after the colleague asked for the post to be withdrawn. He then proceeded to post another inappropriate meme seemingly in retaliation, mocking the request for removal of the meme, with a picture of himself and the words, “That moment after you’ve dropped a meme with the aim to upset some c***s….And you get to hear, c***s are upset”.

After finding out about the social media posts, the employer wrote to the employee and gave him opportunity to respond in writing. The employee did not choose to appropriately avail himself of this opportunity and simply stated that it was a funny meme on his personal social account, which did not warrant dismissal.

The employer, not impressed by this response, after giving the employee the opportunity to explain why his employment should not cease, decided to instantly dismiss the employee.

At the time of his dismissal, the employee was already on a ‘final warning’ and had recently been demoted about for inappropriate conduct and behaviour towards a female supplier.

The Case

The employee commenced unfair dismissal proceedings in the FWC and, in summary, argued that:

  • the employer forfeited its right to summarily dismiss him over the social media posts because it demonstrated a willingness throughout his employment to tolerate comparable workplace conduct by other employees (and himself);
  • he had a history of ‘first and final warnings’ and, therefore, had no reason to expect he was actually on his final warning this time; and
  • his employer had a laid-back approach to conduct in the workplace, allowing or ignoring a wide range of inappropriate behaviours.

In its defence, the employer confirmed that new owners had taken over the business in 2019, just over a year before the employee was dismissed, and appointed a new general manager who was trying to turn the culture around. The general manager refuted the employee‘s claims that the employer tolerated inappropriate workplace behaviour and referred to the actions the employer had undertaken to improve workplace culture since the new ownership.

The Decision

The FWC ultimately determined that while:

  • culture at the employer’s business fell considerably short of the standards expected of a workplace; and
  • the disciplinary process involving multiple final warnings was not perfect and may have caused confusion to the employee,

the new owners were taking steps to improve the workplace culture (even though based on some of the evidence there was still a considerable way to go).

However, despite these imperfections, the FWC held that it did not accept the employee’s assertion that his conduct was not inappropriate and deemed the conduct “plainly inappropriate, if not also unlawful”.

Finding that there was a valid reason for the dismissal and the process undertaken by the employer was fair and reasonable in the circumstances, the dismissal was found not to be unfair despite the “rather usual” robust working environment.

Lessons for Employers

The case reaffirms some important lessons for employers, particularly in light of recent developments and the Government’s response to the Respect@Work report. Namely, that:

  1. out of hours inappropriate conduct can still give rise to legitimate disciplinary action, provided there is a connection to the employment;
  2. employers should not be discouraged from trying to turn around a subpar workplace culture – on the contrary, it is an employer’s fundamental legal obligation to do so; and
  3. regular training and education on appropriate workplace behaviour and social media activity are important, both in terms of meeting an employer’s legal obligations but also in terms of fostering a positive workplace culture.

Case: Mr Matthew Thompson v 360 Finance Pty Ltd [2021] FWC 2570 (6 May 2021)


This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.