In an eye-opening decision, the Fair Work Commission (FWC) recently acknowledged the unfair dismissal of a senior firefighter, Mr Pelly, for allegedly inappropriate social media behaviour, awarding him a reinstatement with his former employer, Ventia Australia Pty Ltd.

The Unfair Dismissal Case in Detail

Pelly’s employment with Ventia, based at HMAS Nowra, was abruptly terminated in September 2022 over allegations of sharing offensive and pornographic material via private Facebook groups. Moreover, he was accused of fostering a hostile atmosphere among his peers by mocking those who left these groups.

Ventia’s representative alleged that Pelly’s conduct violated several company policies, including the Bullying and Harassment Policy, Code of Conduct, Social Media Statement, and his employment contract.

Given the nature of the allegations, Pelly’s dismissal seemed justifiable. However, the narrative unfolded differently during the hearing in April 2023.

The Defence Unravels

Pelly’s defence focused on a few key points: he claimed that he had received no or inadequate training on the policies he supposedly breached. He also argued that Ventia didn’t clarify how his actions had contravened the stated policies. Additionally, Pelly never received a copy of the formal complaint lodged against him.

Arguing against the charges of inappropriate posts, Pelly pointed out that the Facebook groups were private, and the posts weren’t publicly accessible. He further questioned the means through which the complainant had accessed these posts and that the case broadly was for unfair dismissal.

The Commission’s Verdict and Reasoning

The Commissioner agreed with Pelly’s claim that the company didn’t provide him with adequately detailed policies and expectations regarding his conduct.

Significantly, the Commissioner criticised Ventia’s case for its lack of attention to detail. The evidence against Pelly didn’t stand up to scrutiny. For instance, while Pelly did post material during work hours, it wasn’t clear whether these posts were offensive to the targeted individuals. Misinterpretations of Pelly’s comments resulted in mislabelling him as a bully.

Adding to Ventia’s weak case was its inconsistent treatment of similar offences. One of Pelly’s colleagues had received just a warning for sharing offensive content on the same Facebook groups.

Addressing posts that could potentially identify the employer, the Commissioner considered them a violation of company policy. However, he pointed out that these posts did not qualify as severe misconduct warranting termination and therefore, the dismissal was unfair.

A Wake-up Call for Employers

The decision in favour of Pelly underscores the critical role robust social media policies play in shaping workplace behaviour. However, it also serves as a reminder to employers that they should tread carefully before terminating employees based on seemingly straightforward allegations.

To avoid an unfair dismissal claim, employers must ensure they fully understand every allegation. They should also consider the employees’ responses to these allegations before reaching any conclusion. Employers must not just assume a policy breach; they should demonstrate how the specific conditions of the policy were violated.

Even when a policy breach is evident, employers must establish that the misconduct is severe enough to justify termination. Employers must have all their ‘ducks in a row’ to avoid a similar predicament to Ventia’s.

This case thus serves as a cautionary tale for employers navigating the intricacies of social media conduct and policy enforcement. It reinforces the need for clear communication, consistent treatment of similar offences, and thorough investigation before drawing conclusions.

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