Social media - when can you dismiss a public sector employee for inappropriate comments?

The Fair Work Commission has recently handed down a decision that sheds light on the circumstances in which a public sector employer can (and cannot) dismiss an employee for his or her comments on social media  (Starr v Department of Human Services [2016] FWC 1460 (29 March 2016)).

While the decision is subject to appeal, the result at first instance shows that the path to dismissing an employee on the grounds of inappropriate social media comments is not always smooth.

The Facts

The Commonwealth Department of Human Services (DHS) terminated the employment of a Centrelink officer when it found that he had made a number of negative comments relating to his work on social media.

Over a three year period, the employee had posted numerous adverse comments about Centrelink and its customers in online forums such as 'Whirlpool' and 'Sportal'.

Following a misconduct investigation,  DHS found that the employee's negative and inappropriate comments on social media had breached s 13 of the Public Service Act 1999 (Cth), including by breaching the Australian Public Service Values and Code of Conduct and Centrelink's Social Media Policy, and had brought Centrelink's reputation into disrepute.

Offensive online posts a valid reason for dismissal

The Commission found that the following posts by the employee gave rise to a valid reason for his dismissal:

• Posts in which the employee referred to DHS's clients as "spastics and junkies", "whinging junkies" and "junkies";
• Posts in which the employee commented that a large proportion of clients seeking exemption from the work search requirements of Newstart did not have genuine reasons for doing so; and
• Posts in which the employee stated that DHS's processing times were "utterly disgraceful", that he was "embarrassed to work there" and "there isn't a damn thing those of us in the offices can do about it".

However, the Commission rejected DHS's submission that the employee's criticism of the Government itself constituted a valid reason for his dismissal. The Commission held that the relevant sections of the Public Service Act were not sufficiently clear and unambiguous to entirely displace public servants' common law rights to freedom of expression and political communication.

Dismissal unfair despite valid reason

Despite the Commission agreeing that there was a valid reason for the dismissal, it ultimately found that the dismissal was harsh in the circumstances.  The Commission arrived at this finding because of:

• The lack of evidence to substantiate actual damage to the reputation of DHS by the employee's posts;
• the 'situational' and 'impulsive' nature of the employee's posts, which were found to have been 'made out of frustration and not maliciously' rather than in a deliberate attempt to 'publically damage the reputation of [DHS]';
• the employee's genuine remorse and regret for his conduct; and
• the employee's 20 years of service and limited alternative job prospects.

Having found the dismissal to be unfair, the Commission ordered that the employee be reinstated.
No orders were made in relation to lost remuneration as the Commission considered that any loss of income constituted a 'suitable sanction' for the employee's improper conduct.

We understand that the decision is now subject to appeal by the DHS.

Key lessons for public sector employers

• The mere fact that a public servant has made inappropriate or political comments on social media may not be sufficient to warrant dismissal.
• Training employees on a social media policy may bolster an employer's defence to an unfair dismissal claim.
• In weighing up whether a public employee has breached his or her duties, it will be important to analyse whether the impugned conduct has actually compromised the employee's work or damaged the employer's interests or reputation.  Just because an online post is embarrassing or offensive, it may not have sufficient impact to warrant dismissal.
• In all cases, employers must weigh up the nature and gravity of the conduct against factors such as the length and quality of the employee's service, the frequency and extent of any offensive comments and the circumstances in which the comments were made.

We’ll provide an update when the Full Bench hands down its decision.

For more information please contact:

David Catanese
Managing Principal Solicitor
9032 3040

Nicole Lorenz
Solicitor
9032 3051