A Fair Work Australia Commissioner has overturned a truck driver’s sacking for offensive comments posted on his Facebook page, partly because his employer had no firm social media use policy.
The truck driver of 22 years’ unblemished service was sacked in May 2011, after one of his managers accessed the driver’s Facebook profile to find a range of offensive comments directed towards her and the company’s Transport Manager.
The manager gave evidence that she clicked on the driver’s profile while after seeing his name on a mutual Facebook friend’s page and read comments which directly referenced her by name, which she found “revolting and frightening”.
She informed the Transport Manager, who is a Muslim and was also singled out on the driver’s Facebook page as a “bacon hater”, and together they informed the Manager of Workplace Relations about the comments.
An investigation was conducted and the driver’s employment was terminated on the basis that the comments amounted to discrimination of a sexual and racial nature.
The truck driver said his wife and daughter, who set up his Facebook page on his behalf, had told him the profile had full privacy settings and wasn’t intended to be read by anyone who wasn’t a Facebook friend.
He also argued the only sexually discriminatory comments written on the page were posted by a friend, and his comments about the Transport Manager were not intended to be racially derogatory.
Fair Work Australia Commissioner Michael Roberts said the man’s Facebook profile was not intended to be a public forum and the reference to ‘bacon hater’ did not constitute racial discrimination but a remark in poor taste that could be part of normal workplace banter.
“The chains of comments have very much the favour of a group of friends letting off steam and trying to outdo one another in being outrageous. Indeed it has much of the favour of a conversation in a pub or cafe, although conducted in an electronic format,” Commissioner Roberts found.
“The fact that some of the material is not complimentary towards (the company’s) managers is unsurprising. This always has been, and always will be the fate of those holding managerial positions.”
The Commissioner accepted the driver’s argument that the comments deemed to be sexually discriminatory were not posted by him, and while the manager had a right to be offended, “the fact remains that (the driver) did not make the offending comments”.
Commissioner Roberts also commented on the employer’s lack of a policy regarding appropriate use of social media, instead relying on its induction training and company handbook. “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,” he found, ordering the driver’s reinstatement.
The Commissioner, however, did offer a piece of advice to the truck driver, and urged him to follow a piece of advice the driver posted, ironically, on his Facebook page in 2010:
“’Law of Probability - The probability of being watched is directly proportional to the stupidity of your act.’ Here is wisdom.”
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