Singh v Aerocare Flight Support Pty Ltd  FWC 6186
A decision by the Fair Work Commission (FWC) has outlined the potential pitfalls of an employee making public comments on Facebook outside of work hours – but has also highlighted the importance of an employer properly investigating the context of an employee’s comments – and the dangers of jumping to a conclusion.
Mr Nirmal Singh was a baggage handler employed on a casual basis by Aerocare Flight Support, an aviation ground handling and services company. Crucially, Mr Singh possessed an Airport Security Identification Card and was authorised to work within the restricted security-sensitive areas of Perth Airport.
Mr Singh was dismissed by Aerocare after his co-workers discovered a series of Facebook posts made by Mr Singh that, on their face, may have appeared to indicate he held radical views. In one particular post, Mr Singh linked to an article posted by an Australian Islamic group and included his own commentary, being the words “We all support ISIS.”
Before his employment was terminated, Mr Singh attended a meeting with Aerocare management who alleged that his Facebook posts were contrary to the Aerocare social media policy and, given the nature of his job, potentially represented a security risk. Mr Singh asserted that the posts had been sarcastic, that he was opposed to ISIS and extremism, and he was sorry that his posts had been misinterpreted.
That meeting was adjourned to allow Aerocare to review their notes and consider Mr Singh’s explanation. Approximately 10 minutes later, the meeting recommenced and Mr Singh was informed that he would not be offered any further shifts and his employment was effectively terminated.
Mr Singh subsequently made an application to the FWC for unfair dismissal.
In its decision, the FWC confirmed that Mr Singh’s post was in breach of Aerocare’s social media policy. It stated that “[it is not] acceptable for employees in the relevant airport environment to post what appears to be support for a terrorist organisation and explain it away as sarcasm, comedy or satire. Mr Singh did a very stupid thing.” The FWC also stated that if Mr Singh had in fact confirmed that he was a supporter of ISIS, it would have no hesitation in finding that the Facebook post was a valid reason for dismissal.
However, the FWC also observed that:
- It was unsatisfactory that Aerocare had failed to properly investigate the complete newsfeed of Mr Singh’s Facebook account. If time and attention had been taken to review the newsfeed, Aerocare would have discovered that Mr Singh was not, in fact, a supporter of ISIS.
- Mr Singh could have been invited to explain his recent Facebook posts to Aerocare, which would have taken no more than 1-2 hours. Such an explanation would have satisfied Aerocare that Mr Singh was not an ISIS supporter. He was not invited to do so.
- The 10 minute break during the disciplinary meeting was not satisfactory, as it was impossible during that time for Aerocare to have adequately considered all of the issues discussed in the meeting.
- It would have been appropriate for Aerocare to have continued Mr Singh’s suspension, which would have allowed management to fully consider the issues and to make further inquiries with respect to Mr Singh’s Facebook account.
- Prior to the meeting, Aerocare decision makers had closed their minds to any explanation from Mr Singh, and they had not considered any sanction other than terminating his employment.
Given the above, the FWC found that there was no valid reason for Mr Singh’s termination and his claim for unfair dismissal was upheld. Mr Singh was awarded compensation the equivalent of 8 weeks’ pay, however that amount was reduced by 40% because of Mr Singh’s misconduct in breaching Aerocare’s social media policy.
This matter highlights the importance of fully investigating any seemingly improper comments made by employees online and in social media. Given that sarcasm and satire can be difficult to detect in text-based communication, it is crucial to investigate the context in which those comments are made.
Further, when considering whether an employee’s conduct warrants dismissal, it is imperative that an employer takes the time to fully consider any explanation provided by the employee and whether there are any alternative sanctions, other than dismissal, that might be appropriate. Failure to do so may unnecessarily expose the employer to a claim for unfair dismissal.
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