Investigate before dismissing
A recent decision of the Fair Work Commission in Singh v Aerocare Services Pty Ltd highlights the importance of fully investigating any seemingly improper comments made by employees online and in social media.
Mr Singh was dismissed by Aerocare after it discovered a series of Facebook posts made by Mr Singh that 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 short 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. He was terminated ten minutes later and subsequently lodged an unfair dismissal application with the FWC.
“We all support ISIS.”
The FWC found that Mr Singh had breached his employer's social media policy and stated that it wasn't 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."
However, the FWC also found that Aerocare had failed properly to investigate the matter and afford Mr Singh procedural fairness. In short, the employer had closed its mind to any explanation from Mr Singh, had not considered any sanction other than terminating his employment and had effectively pre-determined the matter before properly investigating the allegations.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.
Don't ignore procedural fairness
This matter serves to reinforce the two-limbed approach to terminating an employee: the decision must have merit and the employer must afford the employee the applicable procedural fairness.
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.