A train guard who was sacked for sending a dick pic to a female co-worker after hours has lost his claim for unfair dismissal.
The Fair Work Commission rejected the worker’s argument that he had sent the explicit picture by mistake, and ruled that he had breached his employer’s social media policy.
Miles Heffernan from Industrial Relations Claims said the case is a reminder that workers can be sacked for what they post on their social media.
“You might think that it is after hours, and you might think that it is on your personal profile, but make no mistake, if you are sending messages to your workmates, then what you do on your social media is work related – and is very much your boss’s business,” he said.
Rodney Fussell had worked for Sydney Trains as a guard since 2010, but was fired in August 2018 after an investigation found that he had forwarded a picture of his erect penis to his colleague on the social media app Snapchat.
The co-worker, who is also a train guard, took screenshots of the explicit image and number of messages Mr Fussell said.
‘Do not send me a picture of your dick’
The Commission heard that Mr Fussell messaged the woman late one evening in February, telling her that he had been drinking.
“When I’m drunk I send naughty images,” he wrote.
“Do not send me a picture of your dick,” she replied.
Mr Fussell responded: “Why? Don’t girls like dick picks because guys like clit picks.”
He then sent her an image of his erect penis.
He immediately apologised and told her not to look.
She replied: “Don’t f–king do that again… What the f–k is wrong with you?”
She blocked Mr Fussell from all of her social media accounts and notified management at Sydney Trains of the incident.
Worker said he meant to send pic of tattoo
Mr Fussell claimed in the Fair Work Commission that the dick pic had been sent by mistake, and that he had intended to send a picture of a tattoo on his arm instead.
His lawyers argued that their client had been on leave when the incident happened, and was suffering from acute anxiety and depression after the breakdown of his 17 year marriage, and recent spinal surgery.
What the Commission said
Deputy president Geoffrey Bull didn’t buy Mr Fussell ‘s tattoo story, ruling that he had deliberately sent the offensive picture.
“Mr Fussell’s attempts to suggest otherwise strains credulity beyond any reasonableness,” he said.
While noting that Mr Fussell had taken responsibility for his actions, and immediately apologised for what he did, Mr Bull found that he had breached Sydney Train’s social media policy.
“He overstepped the boundaries of acceptable conduct with a fellow employee to such a degree that no amount of regret or apology can lessen the seriousness of the incident he said,” he said.
“In my view, Mr Fussell’s conduct in this instance was repudiatory; the misconduct constituted the sending of an image that was offensive and in breach of Sydney Trains’ employment policies. It therefore constituted a valid reason for termination.”
Why can you be sacked for your social media?
Mr Heffernan from Industrial Relations Claims said most companies have a social media policy, and almost all would refer to after hours conduct.
“In this case, the Commission did acknowledge that an employer should not delve into the private activities of its employees which occur outside of working hours,” he said.
“But here we had an incident where a worker sent an explicit image to another worker, who then reported it to her superiors – the Commission concluded that even though it happened out of hours, it was still work related – and therefore it breached Sydney Train’s social media policy.”
Mr Heffernan advised all workers to read their company’s social media policy, and to never send messages or images of a sexual nature to work mates.
“It might be late at night, and you might have had a few drinks, and you might think you’re being funny, but you’ve got to ask yourself – is sending that silly dick pic really worth your job and your career?” he said.
If you have experienced sexual harassment, or if you have been unfairly dismissed, you may be entitled to compensation.
Please call our team at Industrial Relations Claims today on
1300 045 466