Social media sucks: when shocking misconduct is not sackable

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The law, it might be said, too often forgets HR professionals are still human. While the employment law regulatory framework expects calm and rational decision making, HR managers are just as prone to emotive judgment as the rest of us. Recent case law provides an apt reminder that a higher standard is expected when employers elect to terminate employees. Although neither occurred in the APS context, they remain instructive for federal public servants.

In Bellenger v Mid North Coast Local Health District, the applicant was found to have had approximately 1,256 emails of a “pornographic, graphic (violence) and generally inappropriate” nature in her work inbox. Among the emails discovered by a forensic audit were 31 emails containing pictures of genitals, four containing images depicting naked children and 11 with cartoons portraying sex. Between 2006 and 2014, the applicant had sent, received and stored these emails in a “funny emails” folder. After the investigation, her employment was terminated.

The applicant did “not take issue” with the investigation process, nor did she assert she was not afforded procedural fairness. However, it was noted she had not previously been warned for misconduct and that there were considerable mitigating circumstances, including her inability to readily find alternative employment and dire financial circumstances. Although Commissioner John Stanton was of the opinion that the employer “had a valid reason to dismiss the applicant” and that the “decision to dismiss was both sound and defensible” he concluded the dismissal was harsh and awarded the applicant 8 weeks’ pay as compensation.

In the equally eye-catching case of Somogyi v LED Technologies, the applicant posted a status on Facebook during his lunch-break: “I don’t have time for people’s arrogance. And your [sic] not always right! Your position is useless, you don’t do anything all day how much of the bosses [sic] c*** did you suck to get where you are?”. Co-workers saw the status and alerted the managing director, who immediately called the employee and terminated his employment.

The managing director acknowledged he “did not provide Mr Somogyi with any real opportunity to provide an explanation for his behaviour … and he was not particularly interested in discussing the matter”. As in Bellenger, the employer felt strongly that they had grounds to summarily dismiss the employee. Mr Somogyi argued the Facebook post had nothing to do with his workplace, and that it was a gesture of support for his mother who was in the middle of an employment dispute.

Additionally, he complained that he was not afforded the chance to provide an explanation or respond to the reason for his dismissal. Not only was Commissioner David Gregory critical of how the dismissal was carried out, but he also suggested the termination itself was not valid. While Mr Somogyi’s post was inflammatory, it was made while on his lunch break and was not connected to his employment with LED Technologies.

These cases highlight that even seemingly gross misconduct does not entitle employers to dispense with procedural fairness or disregard other relevant factors. They also show that employers can be blinded by unthinkable acts and move quickly to remove the individual from the workplace, without properly turning their mind to liability for unfair dismissal.

If an employee’s dismissal was harsh, unjust or unreasonable, then the employee may have access to compensation or reinstatement. Whether or not an employer had a valid reason for terminating the employment is not the be all and end all of deciding liability. While proof of guilt may satisfy the commission that the dismissal was just, the circumstances of the dismissal and the investigation process may nevertheless be deemed harsh or unreasonable.

In some ways, the APS is safeguarded from these risks by the comprehensive policies and procedures that must be followed in the event of misconduct (particularly breaches of the APS Code of Conduct). These help standardise the resulting process and limit emotional decision making. But this can be a double-edged sword. Variance from these policies will be an immediate red flag that proper process was not followed. Moreover, APS employers may be held to a higher standard than the average employer, who does not possess the resources of the Commonwealth nor the same obligation of public accountability.

When dealing with behaviour which appears to warrant prompt termination, APS decision makers need to take a step back and ensure their judgment is not clouded. HR managers may be only human, but those accused of committing misconduct are too.