The risk of leading to a dismissal
Inappropriate or offensive social media posts can often carry the risk of leading to a dismissal. This can be the case even if the post is made from your own private social media account and outside of work hours. Recent cases brough before the Fair Work Commission and Australia’s courts have shown that making inappropriate comments or criticizing your boss on social media can very often lead to a fair dismissal.
In this article, we explain the factors that the Fair Work Commission typically considers when deciding if a social media post is worthy of dismissal. And we share recent unfair dismissal cases to help you understand what kinds of social media posts can lead to dismissal. But first, let’s look at one of the most high-profile cases of an employee (and public figure) who was dismissed for an inappropriate social media post.
In 2022, one of the beauty industry’s most influential names learned the hard way how you can get dismissed for a social media post. John Demsey, executive group president for global cosmetics giant Estée Lauder, regularly posted videos and memes to his 74,000 Instagram followers. But on 21 February 2022, the 66-year-old posted a meme that quickly landed him in hot water and made international headlines.
The post included a parody scene from Sesame Street. It showed Big Bird, wearing a doctor’s mask, tending to an infirmed Snuffleupagus. Above the image was the caption “My n***a Snuffy done got the ’rona at a Chingy concert.” The post caused a widespread backlash on social media, forcing Mr Demsey to delete the post. But before he could do that, an anonymous Instagram account, Estée Laundry, reposted it with the following caption: “How’s it OK for a beauty executive (responsible for the branding and direction of a company that claims to focus on diversity and inclusion) to post this?”
Later that day, the social media post soon caught the attention of Mr Demsey’s employer Estée Lauder, who suspended him. The company told him to stay off social media during his suspension, so that it could devise a public apology.
However, the very next day, Mr Demsey decided to make another Instagram post. It featured an image from an Estée Lauder campaign that he had directed, which featured a black model. The social media post attracted considerable criticism online. Many highlighted that Mr Demsey was attempting to deflect from the controversy surrounding his earlier post.
A few days later, Mr Demsey once again took to Instagram. But this time, he posted an apology for “reposting a racist meme without reading it beforehand.” He directed his contrition not only to those he offended, but also Estée Lauder, with whom he’d been employed for the previous fifteen years.
But the apology wasn’t enough to save Mr Demsey’s job. A few days later, Executive Chairman of Estée Lauder, William Lauder, announced that he had been dismissed from his role. Mr Lauder highlighted that Mr Demsey’s posts “caused widespread offence” and were “damaging to [Estée Lauder’s] efforts to drive inclusivity.”
Mr Demsey’s dismissal of course took place in the context of American employment laws. But even through the lens of Australian law, it’s likely that his dismissal would be considered as fair by the Fair Work Commission. In Australia, posting the wrong thing on social media can be grounds for dismissal. There have been numerous unfair dismissal cases brought before the Fair Work Commission involving employees who have been dismissed for a social media post. When determining if a dismissal was valid, the Fair Work Commission will consider:
- Whether the employee’s actions were intentional and in breach of their contractual duties. And;
- Whether such behavior could harm the employer’s reputation, financial stability, or the well-being of others.
The Fair Work Commission will also generally take into account:
- If the posts breached the employer’s social media or company policy.
- The nature of the social media post. There is a much more pronounced consideration of the tone and context of the post, and less so on the way it was written.
- If there is a sufficient connection between the social media post and the employer.
- Whether the social media post approve of views that go against the values of the employer.
- Whether the employee was provided with procedural fairness prior to being dismissed.
Recent unfair dismissals cases have shown that the Fair Work Commission can consider a dismissal fair even if the social media post was posted from the employer’s private account and outside of work hours. This was demonstrated in the recent unfair dismissal case Conrad John Corry v Australian Council of Trade Unions [2022].
The case concerned the dismissal of an Australian Council of Trade Unions (ACTU) employee for posting offensive and discriminatory content on his personal Facebook account. The posts were made during Melbourne’s anti-vaccination mandate protests in 2021. The employee’s Facebook profile didn’t state that he was an ACTU employee, nor featured any photos of himself. The social media posts expressed approval of the violence police experienced during the protests. They also made light of domestic violence and the Black Lives Matters movement. The employee also posted material that discriminated against the gay community and included racist comments.
When considering if the dismissal was fair, the Fair Work Commission found that:
- The posts were likely to seriously damage the employee-employer relationship and the ACTU’s interests.
- The posts were not compatible with the employee’s duties to the ACTU.
- While the employee had the right to express his views, he didn’t have the right to publicly express views that go against the interests and values of the ACTU.
- The posts violated the ACTU’s policies and amounted to serious misconduct, thereby justifying the dismissal.
It’s important to note that the employee’s dismissal was deemed fair even though the ACTU’s social media policy didn’t encompass out-of-hours misconduct. And not only that, even though the ACTU had not provided the employee with complete procedural fairness.
Yes, it is possible to be dismissed for criticizing your employer on social media. Like other social media posts, the Fair Work Commission will take into account a number of contextual factors (like those listed above). A recent landmark case that involved an employee criticizing their employer on social media is Comcare v Banerji [2019]. This case was resolved in the High Court of Australia and answered questions around the obligations of employees to their employer versus their right to freedom of speech.
The case involved Department of Immigration and Border Protection (DIBP) employee Michaela Banerji. She was dismissed by DIBP in 2013 after it was discovered that she had regularly criticized the Australian government via an anonymous Twitter account. Ms Banerji had used the Twitter handle “LaLegale” to tweet more than 9,000 times during 2006 to 2012. Her tweets criticized the Australian government’s immigration policies, including that which banished refugees en route to Australia to detention camps in Nauru and Papua New Guinea.
An internal investigation conducted by the DIBP revealed that Ms Banerji was behind the anonymous Twitter account. And she was dismissed for breaching the Australian Public Service code of conduct. The code of conduct states that employees must still uphold the Australian Public service values and code of conduct “even when material is posted anonymously, or using an ‘alias’ or pseudonym.” Ms Banerji subsequently lodged a worker’s compensation claim through the Administrative Appeals Tribunal.
Ms Banerji wins workers compensation claim, high court overturns
In 2014, Ms Banerji argued to the Administrative Appeals Tribunal that “most of my tweets, except one … were done in my own time and not during working hours.” She claimed that all her tweets were made “at home, on weekend, on public holidays, on sick leave.” And that “I was not speaking for the Department.” The Administrative Appeals Tribunal ultimately ruled that Ms Banerji’s dismissal was not reasonable. And that the Australian Public Service rules concerning social media use “unacceptably trespassed on the implied freedom of political communication.”
However, in 2019, the Australia High Court overturned the decision of the Administrative Appeals Tribunal. It ruled that the dismissal of Ms Banerji had not violated her right to freedom of political speech. And that the Australian Public Service code of conduct was a proportionate measure for ensuring an apolitical public service.
employee dismissed for criticizing boss on Facebook gets reinstated
Ms Banerji was ultimately unsuccessful in challenging her dismissal. But other employees who have criticised their employer on social media have had their dismissal overturned. This includes a truck driver for Linfox, who was successful in his unfair dismissal case Linfox Australia Pty Ltd v Glen Stutsel [2011].
Mr Stutsel had been a Linfox employee for over 20 years when he was dismissed for making inappropriate comments on his Facebook page. The comments were directed at two of his managers, Mick Assaf and Nina Russell. Mr Stutsel had called Mr Assaf, a practising Muslim, a “bacon hater.” While he also made sexual comments about Ms Russell. He had also made comments about the death of a Muslim terrorist.
Mr Stutsel subsequently made an unfair dismissal claim with the Fair Work Commission. He argued that he believed his Facebook profile was on maximum privacy settings. And therefore believed that his comments could only be viewed by his online friends. He also argued that he didn’t fully understand how Facebook works.
Fair Work Commission reinstates employee
At Mr Stutsel’s unfair dismissal hearing, the Fair Work Commission found that:
- Comments on Mr Stutsel’s Facebook page about Ms Russell were “outrageous.” However, that most of the comments were made by his Facebook friends, in response to his original comment.
- That Mr Stutsel’s comment directed at Mr Assaf was in “poor taste” but not intended as malicious.
- That his comment regarding the Muslim terrorist were “distasteful.” However, that the comment came within his right to free speech.
- Linfox didn’t have a social media policy in place.
The Fair Work Commission also took into account that Mr Stutsel had worked for Linfox for over two decades, without any previous disciplinary incidents. With all these findings taken into account, the Fair Work Commission ultimately ruled that Mr Stutsel’s dismissal was not fair. It therefore ordered Linfox to reinstate him and pay him compensation. Linfox would later appeal the decision, but it was upheld by the Fair Work Commission.
Have you been unfairly dismissed?
Whether you feel you’ve been unfairly dismissed for a social media post or any other reason, we at A Whole New Approach can help. We can make it easy to lodge an unfair dismissal claim with the Fair Work Commission. But remember, you only have 21 days to lodge your claim, so make sure to contact us today.
Why choose A Whole New Approach? Because we’re Australia’s leading workplace mediators, and commentators with over two decades’ experience helping over 16,000 workers take action through the Fair Work Commission. We can provide the expert guidance and advice you need to make your unfair dismissal claim a success. Facing serious misconduct or a workplace investigation over social media content give us a call. Casual employee or employee rights call us now.
We provide a no win, no fee service – and your first consultation with us is free and confidential.
To schedule a private consultation, please call us at 1800 333 666 and take the first step toward a just resolution.
Articles similar to: Social media post dismissal
Dismissed for comments to the media
How much is my unfair dismissal case worth
