Facebook post leads to dismissal

By Michael Selinger on June 21st, 2018
  1. Employee health & wellbeing
  2. Social Media Policy

 

A recent decision of the Fair Work Commission (FWC) has shown that misleading statements about the safety of operations at work can lead to the lawful termination of employment of a health and safety representative.

In Waters v Mt Arthur Coal Pty Limited (2018), the FWC found that an employer dismissed an employee fairly for a Facebook post made outside of work hours on a personal account in which he told workers that a direction to suspend mining operations for safety reasons on Christmas Eve was in operation, despite being later told that this was not the case.

Background

The employee, Mr Waters, was employed by Mt Arthur Coal Pty Limited (Mt Arthur) at its open cut coal mine in the Hunter Valley, NSW (Mine). Mr Waters was also a Health and Safety Representative (HSR) at the Mine.

Shift changes

Mt Arthur, in the lead up to Christmas 2017, made a number of decisions regarding whether it would conduct its operations at the Mine on Christmas Day and Boxing Day. The uncertainty surrounding the Mine’s operations on these days related to safety, primarily in respect of the capacity to have in place sufficient emergency evacuation procedures. Mt Arthur announced two days before Christmas that the operations would continue at the Mine on Christmas and Boxing Day as they were satisfied with the arrangements put in place (Final Decision).

Safety concerns

Following the Final Decision, an employee of the CFMMEU and an Industrial Safety and Health Representative appointed under section 28 of the Work Health and Safety (Mines and Petroleum Sites) Act 2013 issued a direction to suspend mining operations (Direction) for safety reasons on Christmas Eve, following the Final Decision. The safety reason related to the reduced emergency evacuation capacity over that period. Mt Arthur received the Direction but made the decision not to comply as it did not see the safety risk to be a realistic concern. The Direction was not issued by Mt Arthur.

Facebook post

On Christmas Eve, after Mt Arthur and Mr Waters received the Direction, Mr Waters made a Facebook post relating to shifts on Christmas Day and Boxing Day. The post said:

“Xmas & Boxing days [sic] shifts are off for good”.

The Facebook post was incorrect because Mt Arthur had made the decision not to comply with the Direction.

At the time, Mr Waters made the Facebook post, he was unaware that it was incorrect as he assumed Mt Arthur would comply with the Direction. When Mr Waters became aware that his post may have been incorrect later that evening, he made attempts to contact workers and representatives of Mt Arthur to confirm its decision to continue operations. Mr Waters then deleted the Facebook post when he had confirmed that it was inaccurate.

Termination of Mr Waters’ employment

Mt Arthur had workplace policies that set out, among other things, the workplace values of ‘integrity’, ‘respect’ and ‘accountability’ and which also prohibited:

  • “distribut[ing] material that is likely to cause annoyance, inconvenience or needless anxiety to your colleagues’; and
  • “disclos[ing] information to the public, including the media and members of the investment community, unless you are specifically authorised.”

Mt Arthur terminated Mr Waters’ employment for breaches of its workplace policies (as set out above).

Submission to the FWC

Mr Waters argued that his dismissal was unfair because:

  • the reason for his dismissal related to conduct outside of work; and
  • he was protected from dismissal because he was dismissed for exercising the functions of his role as a HSR pursuant to the Work Health and Safety Act 2011 (NSW) (WHS Act).

The FWC rejected Mr Waters’ submissions.

Decision

The FWC found that the purpose of the Facebook post had a relevant connection to the employment and therefore constituted a valid reason for dismissal because:

  • the purpose of the Facebook post was to communicate with Mr Waters’ work group;
  • the reference to shifts was a plain reference to work shifts at the Mine;
  • the post related to operational matters;
  • the post was likely to cause serious damage to the relationship between Mr Waters and Mt Arthur because the content of the post was incorrect and required Mt Arthur to take steps to attempt to prevent or minimise the confusion which would likely be caused by the Facebook post;
  • the Facebook post would have been likely to, if not addressed in a timely manner, damage Mt Arthur’s interests in operating the Mine; and
  • the Facebook post was incompatible with Mr Waters’ duty as an employee, particularly his obligation to comply with his relevant obligations under the workplace policies.

The FWC also rejected that the Facebook post could be described as a function of Mr Waters’ HSR duties to:

  • represent employees;
  • enquire into anything that appears to be a risk to health and safety; or
  • receive information concerning work health and safety matters.

In particular, the Commission found that the Facebook post was not an exercise of Mr Waters’ HSR functions in circumstances where the WHS Act did not expressly confer a power or function to communicate regarding health and safety matters to a work group on social media.

The FWC found that any purported failure by Mt Arthur to comply with the Direction did not give rise to any right for Mr Waters to make the Facebook post or any reason that Mr Waters should be excused for his breach of the workplace policies.

Valid reason

The FWC found that Mt Arthur had a valid reason to dismiss Mr Waters for breaching its workplace policies, notwithstanding that Mr Waters:

  • deleted the Facebook post as soon as he became aware that it was incorrect; and
  • that the Mine’s operations were not, in fact, disrupted by the Facebook post.

The FWC referred to a previous decision on the significance of breaches of employer policies in the context of assessing whether there is a valid reason for dismissal:

“A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal”.

The FWC also found that the dismissal was not otherwise procedurally unfair in circumstances where “Mr Waters knew, or ought to have known, that his post could, or was intended to, disrupt operations at the Mine on Christmas Day and Boxing Day”. Mr Waters at no time sought to update his Facebook post with the correct information.

Lessons for you

The FWC confirmed the circumstances when out of hours conduct may constitute a valid reason for dismissal, being when the conduct has a relevant connection to the employment relationship. In this case, there was a clear relationship.

The Commissioner also confirmed that the role of the HSR does not afford a worker a general protection from disciplinary action in circumstances where their conduct is in clear breach of the employer’s policies.

The Health & Safety Handbook, of which Michael Selinger is Editor-in-Chief, has more than 70 chapters covering all aspects of workplace health and safety.

Every chapter is written in plain English so they are easy to understand and information can be quickly implemented at your workplace.

Learn what to do in situations like this and many others.

Take advantage of the expert information from Michael and health and safety experts by subscribing to the Health & Safety Handbook today.

 





Related Articles: