In Yer Face………Book

Linfox Australia Pty Ltd v Glen Stutsel [2012] FWAFB 7097 (3 October 2012)

In a classic case of blame the victim decision-making, Fair Work Australia has upheld a decision to reinstate a worker who used Facebook to seriously denigrate and abuse his managers and his company. A full bench on appeal has effectively said that grossly abusing mangers on Facebook was OK because the employee was “older” and ignorant of the broadcast capacity of social networking sites. Also, because Linfox “didn’t have a social networking policy” the company was partly to blame.

The full bench took pity on the employee because of his age and length of service, yet failed completely to see that someone of his age and experience ought to know better than to have behaved so appallingly, and offensively in the first place.

The employee either posted, or left in place “friends” posts, such charming comments as calling a Muslim manager “bacon-hater” and alleging a female manager slept her way to the top. There was more of a similar ilk.

This case potentially sends a message that an employee is “forgiven” by the tribunal, for gross behaviour which in any other aspect of life would not be tolerated. The decision seems to send a message it is OK to abuse your managers using Facebook and for an employee to suggest that a female manager has advanced through the ranks because she granted sexual favours to others is OK. To ridicule another religion and a manager’s religious beliefs is OK. It is not serious enough to warrant dismissal. Instead, the employee should be reinstated with benefits. The fact that the comments showed the employee had no respect for his management was no impediment to the future of the relationship, according to FWA.

This case highlights to employers that as long as the law is about what someone thinks is fair or unfair, employers can never be certain their actions will be left undisturbed by this tribunal. Even racial, cultural, sexist and religious abuse were of no consequence in this case.