Dismissal of an Employee For Offensive Facebook Posts
In the recent unfair dismissal decision of Corry v Australian Council of Trade Unions T/A ACTU. The Fair Work Commission upheld the dismissal of an employee for making offensive and discriminatory posts on his personal Facebook account and the employer’s internal messaging service. The posts supported an anti-vaccination mandate campaign. Violence against the police, and were discriminatory against various groups including the LGBTQI+ community.
Background
The ACTU is the peak body for Australian unions, is made up of 38 affiliated unions. (including the CFMMEU and Police unions) It represents approximately 1.8 million workers and their families. The ACTU aims to be inclusive of workers’ diversity and adopts and promotes public positions in support of equality. ACTU has a diverse workforce, which includes people from various backgrounds, ages, cultures, linguistic diversity, gender identity, sexuality and LGBTQIA+ status.
In addition, ACTU has a clear policy on COVID-19 vaccinations in the workplace. Mandatory vaccinations have been one of the most significant issues of public policy over the last two years. In that it has been that of federal and state government responses to the Covid-19 pandemic. ACTU supports and encourages all workers being vaccinated, as a fundamental matter of workplace and community health and safety.
The ACTU has also publicly responded to the anti-lockdown and vaccination mandate protests held around the country. The ACTU condemned the violence, attributing the protests to far-right extremist influences and continued to encourage vaccination and support for advice of public health experts.
Events Leading Up To Dismissal of an employee
Mr Conrad John Corry (the Applicant) commenced his employment with ACTU on 15 June 2015 as a full-time Inbound Organizer. Throughout his period of employment, Mr Corry received multiple warnings about his inappropriate conduct. On 8 March 2018, the Applicant received a warning for engaging in disrespectful communications with other staff members. On 9 August 2021, Mr Corry received another warning for failing to remove inappropriate posters/images from his work station. This was located immediately adjacent to one of the main doors from the open plan office into the kitchen. The inappropriate materials included:
- a poster of Conan the Barbarian, which included sexualised depictions of semi- naked women;
- black and white photos of a naked/topless woman; and
- a photo of a statue of a topless woman.
Final warning
Final This warning was described as a “final warning” regarding this incident and any future unacceptable conduct.
Emailed screenshot
On 21 September 2021, ACTU was emailed a screenshot of a post made by the Applicant on the employer’s internal messaging service. This service was called “Slack”, which was visible to all staff. The context in which the “Slack” post occurred was that of a violent protest that took place outside the CFMMEU’s Victorian construction division’s office in the Melbourne CBD. This was on the previous day (20 September 2021) following the state government’s announcement of a mandatory COVID-19 vaccination for the construction industry. The Applicant’s post stated “my sources on the ground tell me that there must be a few thousand CFMEU members chanting F Dan Andrews and F The Jab heading towards Spring St… . They’re obviously not ‘far right’ or Neo-Nootsis (whatever that means), prepare for some calls though!”.
A risk to due to the “Slack” post, ACTU decided to review the Mr Corry’s social media posts which were able to be viewed on his public personal Facebook account. On viewing Mr Corry’s Facebook posts, Alex White (ACTU employee) was concerned that a number of posts were variously offensive and derogatory. Or potentially constituted harassment and/or a risk to health and safety. Or had the potential to bring the ACTU into disrepute.
Facebook postings include:
- He posted a photo of the protest that was then underway outside the CFMMEU office with the comment: “F..k the jab’ good lads!”
- The employee made a Facebook post stating:“Rights are what you’re collectively able to enforce and protect I have the right and reserve the rights to party with my friends and wake up in the swag *searches for state government approved reasons*. …I was fleeing domestic violence so I could attend the Blag Lives Natter meeting and it was all gay people and rainbow flags there and we discussed getting drag queen story hour into primary schools ahhhhh your honour…shiiiiiieeeeeeeeet NIBBA…Don’t be afraid to use globo homo Big Lies against them..”
- Mr Corry made a Facebook post which included a link to a video clip of a police officer being assaulted during a protest, captioning the video: “A hero has emerged! Bad music but beautiful clip, I do enjoy Bolsheviks whether urban cops or other types get taken out, even if only for a moment”.
- Mr Corry made a Facebook post in conjunction with a photo from the Met Gala 2021, captioning the photo: “This Met Gala was a truly horrifying exhibition of the hideous, the synthetic, and other elements of what makes the GloboH system so ugly and unappealing to healthy (normal) people, truly a spectacle of the grotesque…. truly demonic energy requiring a flaming sword/righteous Hammer to exterminate”.
- He made a Facebook post which included a cartoon and photo of two women wrestling, captioning the post: “there is something quite demonic going on with all this Trans stuff…the ritual humiliations of having it in public, the ritual sacrifice of body parts (mainly genitals), the indoctrination of children and all the other general ugliness of it”.
- Further he made a Facebook post which included a photo of Kyle Rittenhouse carrying a semi-automatic machine gun. Following his acquittal of two counts of homicide from a fatal shooting, captioning the photo: “A hero has emerged… Pray for Kyle”. Mr Corry posted another photo of Kyle Rittenhouse with an accompanying headline of a story that a US police officer who had been dismissed for donating to Kyle Rittenhouse’s legal defense costs, had filed a grievance. Mr Corry commented on the headline story: “Good, I donated some serious USD to Kyle’s defense too. He’s a good boy and innocent of all crimes.”
Workplace investigation
On the following day, 22 September 2021, Mr Corry was asked to attend a meeting, in which the posts were shown to Mr Corry and he was asked to respond. During the meeting, Mr Corry explained himself and whilst maintaining that his conduct was “reasonable”. He offered to delete the Facebook posts of concern. After the meeting, ACTU deliberated about Mr Corry’s future with ACTU before deciding to terminate his employment for serious misconduct later that day. ACTU alleged that the “Slack” post and several Facebook posts were (among other things) highly offensive, discriminatory. Further it constituted a risk to health and safety as well as the reputation of ACTU.
Unfair Dismissal Claim
On 8 October 2021, Mr Corry lodged an unfair dismissal application with the Fair Work Commission. In which he asserts that the termination of his employment with the Australian Council of Trade Unions (ACTU) on 22 September 2021 was unfair.
In considering whether the employee’s out-of-hours posts on his personal Facebook account were a valid reason for dismissal, Deputy President Masson of the Fair Work Commission ruled the posts were likely to cause serious damage to the relationship between ACTU and Mr Corry. Caused a serious and imminent risk to the reputation of ACTU. Mr Corry’s conduct was incompatible with the employee’s duties to the employer. Deputy President Masson ultimately held that the conduct breached the employer’s policies and constituted serious misconduct. Which justified the employee’s dismissal. However, the disciplinary process followed by the Respondent was procedurally unfair.
Absence of fair process
Nevertheless, Deputy President Masson ruled that the absence of a procedurally fair process, is to be given significantly less weight on this criteria than the presence of a valid reason. Given the seriousness of Mr Corry’s actions. That is because even had the ACTU put the detail of the allegations to the Applicant in a more fulsome manner, it is highly unlikely that a different outcome would have been reached. This is because Mr Corry has shown no insight into or contrition for his conduct.
Rights to his personal views
While strongly pressing his claim to have an unfettered right to espouse his personal views and beliefs outside of his normal working hours. He made no concession as to any obligations he owed to his former employer in respect of those Facebook posts. In these circumstances, Deputy President Masson held it was unlikely that any level of detail put to him during the disciplinary process would have altered his position or that of the ACTU. The dismissal was deemed fair.
Dismissal of an employee
I hope this article “Dismissal of an Employee For Offensive Facebook Posts” was helpful. Social media postings have always been controversial. What can you say, or not say in a democracy. Also the Fair work Commission commented on the issue of insight. When you apologize or not, show contrition, and possibly keep your job. all these are considerations for you.
Sometimes it’s not just about reputational damage to the employer. What about your co worker’s?, does it unnecessarily hurt colleagues feelings. People you have to work side by side every work day for years. Workplaces have to have a inclusiveness team based approach, how do all these comments, postings fit in with this? Have a question give us a call. Serious misconduct, general protections, probation issues, Workers rights, employment rights, harassment issues, we do the lot.
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