The Fair Work Commission has ruled that ports business Hutchison was within its right to fire a worker who shared a pornographic video via a group Facebook chat, because some of the recipients of the message were his co-workers and there was potential for the fallout of the video to “spill” into the workplace.
The worker was employed as a stevedore at Sydney International Container Terminals Ltd, a company owned by Hutchison Port Holdings, which operates a container terminal at Port Botany in New South Wales.
He was dismissed in August 2017 on the grounds of wilful misconduct, after an incident in which he sent a 10-second video to a number of Facebook friends in July, 2017. The video showed a man opening a sealed box to reveal a naked woman inside.
The Commission heard there was a mixed reaction to the message, but one female co-worker who received the video was upset, responding with, “mate, don’t send me that shit”.
“I think you’re a good guy! I don’t appreciate msgs like that and Iv [sic] heard you have been doing this shit to others,” the co-worker said.
The Commission also heard one of the recipients of the video was the Sydney secretary of the Maritime Union of Australia. The union secretary contacted the worker about the video and, as a result, it was suggested to the worker that he take time off to deal with “personal issues”.
However, after the worker started a period of leave without pay, his employer heard about the Facebook video and asked him to respond to claims he had sent the unsolicited content to female workers.
He did not provide a response when initially requested, and the business subsequently dismissed him for his actions.
The worker then brought unfair dismissal proceedings against Hutchison, arguing he had sent the message out of hours and had not intended to offend anyone.
“First and foremost, I want to clear my name. I don’t want this hanging over me as being a sexual harasser. I never harassed anyone,” the worker said.
In response, the business argued it had a duty of care to investigate issues that could pose a risk to employees.
In deciding the case in favour of the employer, Fair Work Commissioner Donna McKenna said while she was “not unsympathetic” to parts of the worker’s arguments, the fact remained that his actions had “spilled” into the workplace and that he knew “other employees were not happy” about him sending the message.
Further to this, when the worker was asked by the company to provide a response to explain his actions, he did not do this. The commissioner said this contributed to her belief that the dismissal was not harsh or unjust.
In a statement to SmartCompany, Hutchison Ports said it is committed to maintaining a “harassment-free workplace”.
“There are company policies in place to create an environment for all employees that is free from harassment, and as such, while terminations are difficult at any time, the company will not tolerate obstructions to this workplace freedom,” the company said.
SmartCompany was unable to contact the worker prior to publication.
As more workers engage in remote work and more employees engage in group-chat style communications, the legal understanding of “the workplace” will change, says director of Workplace Law, Shane Koelmeyer.
“The workplace is now no longer just the place that you are at work — often, not everyone is working in the same place,” he tells SmartCompany.
This means employers must be communicating to staff that their actions outside work could affect the workplace, Koelmeyer says. He says it’s critical that businesses make it clear how they expect staff to behave online at all times, whether they are on the clock or not.
“It’s about explaining to staff that anything you post or send to people could become related to the business, even if it’s sent privately,” he says.
He recommends that businesses establish a clear social media policy, but also take the time to explain this to staff and create a buy-in by highlighting how any social media communications could potentially hurt the business.
“Explain to people that work for you that if you post this sort of stuff, if you include these things in a group message, it could eventually come back to affecting the business,” he says.
Comments