The Fair Work Commission (FWC) has recently considered when an employee’s conduct outside of work hours impacts their employment in two unfair dismissal claims lodged by two employees who were dismissed for sharing pornography and offensive images on Facebook.
The decisions also serve a timely reminder of the importance of workplace training being more than a “tick and flick” exercise, particularly given employers’ new increased obligations to proactively prevent sexual discrimination in the workplace under the Sex Discrimination Act 1984 (Cth) (SDA).
Background
Ventia Australia Pty Ltd (Ventia), an essential services provider, terminated the employment of two firefighters after it discovered that they were sharing pornographic images, racist memes and inappropriate comments in a private Facebook group. 11 of the 18 members of the group were current Ventia employees.
Some of these sexually explicit posts were shared by a firefighter (Firefighter 1) while at work, as well as outside of work hours. Another firefighter (Firefighter 2) was also dismissed for sharing derogatory images during work hours, but also for circulating other inappropriate images outside of work hours.
Ventia alleged the firefighters had breached its workplace policies, including Bullying and Harassment, Code of Conduct and Social Media policies, and terminated their employment.
Both firefighters subsequently filed unfair dismissal claims with the FWC.
Decision
In upholding the dismissal of Firefighter 1, the FWC found that the act of distributing pornographic material whilst on duty was distinguishable from a one-off act of privately viewing pornography on a personal device whilst at work, and justified dismissal, despite Firefighter 1’s exemplary 14-year service record with Ventia.
The FWC found that:
- participation in the private Facebook group occurred almost exclusively outside of work hours;
- there was a lack of nexus between the Facebook group and the Ventia’s workplace for it to be considered ‘work-related’, given some of the participants were not current Ventia employees, and that there was only an occasional post made about work; and
- participation in the chat was through the individual’s own devices and was not accessible to the public.
The FWC acknowledged that the group posts made out of hours may have appeared “gross or inappropriate” but noted that workers were entitled to a private life which may include conversing with some of their colleagues, and the role of the FWC was not to “make judgment or provide commentary on the morality” of their conduct. The FWC further stated that there was no malice involved, and the banter was, “nothing more than examples of how male blue-collar employees talk to each other”.
Additionally, the FWC looked at the organisational context more broadly when considering the termination of Firefighter 1, who had also viewed pornography whilst on duty. The FWC accepted that there was no supervision or directions from Ventia to staff as to the type of material that could be viewed by employees while on shift. Despite the above, the FWC still considered that Firefighter 1’s conduct of distributing pornography while on duty justified dismissal.
In respect to Firefighter 2, the FWC held that despite the inappropriate work-related posts being in breach of Ventia’s policies, including a photo taken in the defence base carpark of a colleague returning from an extended period of personal leave and a post suggesting a likeness between the new fire engine purchased by Ventia and an old bicycle, these were minor misdemeanours and did not justify dismissal. It was also found that while Firefighter 2’s out of hours conduct in sharing pornographic and derogatory images of women was inappropriate, it was not workplace conduct as it occurred out of hours on the private Facebook group.
Importantly, the FWC found that employees were not adequately trained in some of Ventia’s bullying, harassment and social media policies, with the tick and flick training lacking “the educational rigour and outcomes” that in person training would achieve.
As a result, the FWC found Firefighter 2’s dismissal was unfair and ordered he be reinstated.
Lessons for Employers
A key takeaway from this case is that employees who engage in inappropriate conduct during work hours, even if it is on a private social media platform, may be subject to disciplinary action. However, employers should ensure that its training and policies have genuine educational outcomes, are up to date and clearly communicated, so that employees fully understand what is expected of them during work hours.
Employers should also bear in mind that, a ‘tick and flick’ approach to training will not satisfy an employer’s obligations under both safety law and equal opportunity legislation to take all reasonable steps and precautions to prevent inappropriate behaviour in the workplace, particularly in light of recent amendments to the SDA.
Under the SDA, employers now have a positive duty to take reasonable and proportionate measures to eliminate unlawful sex discrimination, as far as possible. Sex-based harassment, such as the making of sexist and misogynistic remarks about a specific person and displaying images or materials of a sexist or misogynistic nature are also prohibited under the SDA.
HR Legal can assist in tailoring workplace training and policies that meets your obligations under workplace legislation and that suits your organisational needs.
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