IR lawyers surprised as Fair Work Australia reinstates worker sacked for “distasteful” Facebook comments

A union delegate has won an unfair dismissal case against transport giant Linfox, with the industrial umpire ordering a quick reinstatement and compensation for lost wages despite the fact he made derogatory comments about two managers on Facebook.

Fair Work Australia Commissioner Michael Roberts this week found that the dismissal of Transport Workers Union delegate Glen Stutsel was harsh, unjust and unreasonable.

Stutsel was fired in May for what Linfox described as “racially derogatory remarks” about a Muslim manager Mick Assaf – Stutsel called his manager a “bacon hater” – and separate comments “which amounted to sexual discrimination and harassment” of female manager Nina Russell.

The comments were made on his Facebook page, which Stutsel said he believed had the maximum privacy settings.

The comments to current and former Linfox employees included Stutsel’s admiration of bears, which he said have the capacity to “rip Nina and Assaf heads off [sic], shit down their throats and then chew up and spit out their lifeless body!”

Russell told FWA that she believed unflattering references about a “Linfox female manager” by Stutsel’s Facebook friends referred to her, and these comments implied that she “provided sexual favours for employees in exchange for industrial peace.”

But in his ruling this week, Commissioner Roberts said the “bacon hater” comments were “clearly in poor taste but cannot amount to being a racially derogatory remark intended, or acting to, vilify Assaf on racial grounds.”

“In my considered view, the remark was not intended to be hurtful, even if that was not so,” he said.

Roberts also described comments about Russell as “an attempt at humour in my view and did not contain any credible threat to Ms Russell’s wellbeing.”

Roberts said “the material was metaphorical and hyperbolic” but not intended to harm.

In its dismissal letter earlier this year, Linfox said the comments were “extremely serious, and [it] could not in any way condone or fail to deal with these matters appropriately.”

Noting his length of service – 22 years – Linfox said Stutsel’s employment would not be immediately dismissed but be able to serve out the terms of his contract, and would receive the outstanding entitlements.

But Roberts said although Stutsel’s firing was procedurally fair, he did not believe the worker was guilty of serious misconduct.

“I further find that there was not a valid reason for the termination of his employment.”

“The Applicant’s Facebook page was not a web blog, intended to be on public display. It was not a public forum.”

Roberts also likened conversation threads in Facebook to a conversation in a pub of café, saying chains of comments “have very much the favour of a group of friends letting off steam and trying to outdo each other in being outrageous.”

He added: “I have no doubt in this context that Mr Stutsel is fully aware of the comments on his Facebook page were foolish and he regrets the entire situation.”

Roberts said Strutsel was “quite capable of resuming his duties” and he believed that the “employee/employer relationship can be re-established provided that there is goodwill on both sides.”

During cross-examination, Stutsel agreed his actions were foolish but the comments were not intend to offend any particular group, nor intended to be seen by the two managers.

However, he denied his Facebook page was open to the public but rather said it had had the highest privacy setting, and rejected the assertion he had made “extremely derogatory comments” about the managers.

He also drew attention to his “excellent” work history and noted that he was not aware of any social media policy at Linfox.

In the ruling, Roberts accepted Stutsel’s evidence that the believed the page had maximum privacy settings and accepted Stutsel’s submission that the believed he could not delete comments from Facebook friends after they had been posted.

Middletons workplace relations and safety partner Seamus Burke said FWA had delivered a “triple whammy” to Linfox, in the form of reinstatement, compensation and the loss of the case, which had failed to be resolved at conciliation.

Burke described the ruling as surprising, because it went against the grain of recent rulings on social media, and throws into doubt employers’ right to fire somebody for certain comments on social media.

“This is a speed-hump in what was appearing to be a relatively defined road of expectations,” Burke says.

“This concept that the Facebook page wasn’t meant to be a public forum – that component of the ruling is the most troubling for employers,” Burke says.

But Burke says Linfox is not blameless, noting its case was weakened by the company not having a social media policy and Stutsel’s decades with the company.

“The most damaging thing [for Linfox] was the lack of the lack of the policy and training,” Burke says. The company did have an equal opportunity and diversity policy.

Roberts said in his ruling: “In the current electronic age, this is not sufficient and many large companies have published detailed social media policies and taken pains to acquaint their employees with those policies. Linfox did not.”

Irrespective of whether Linfox did the right thing once it became aware of Stutsel’s comments, Burke says the best protection for businesses is ensuring they have a social-media policy detailing what is and is not acceptable, and training in place.

“It’s not just the remedial steps; it’s the pre-steps you can do.”