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Union Worker Loses Unfair Dismissal Over Social Media Posts

Union worker loses unfair dismissal over social media posts

A union worker has lost his unfair dismissal claim after being sacked over comments he posted on his personal Facebook page.

The Fair Work Commission found the union had a valid reason for dismissal because the posts amounted to serious misconduct.

Union worker’s anti-vaccination post

The employee worked for the Australian Council of Trade Unions (ACTU) since June 2015.

On 21 September 2021, he posted a message on the union’s internal messaging system which was visible to all employees.

The post related to the violent protest that took place following the Victorian government’s mandatory COVID-19 vaccination policy announcement:

“My sources on the ground tell me that there must be a few thousand CFMEU members chanting F Dan Andrews and F The Jab heading towards Spring St. They’re obviously not ‘far right’ or Neo-Nootsis (whatever that means), prepare for some calls though!”

The post concerned the ACTU – prompting it to check the employee’s other public social media posts.

Facebook posts

The union subsequently found that prior to the protest, the worker had made several Facebook posts, including:

  • A picture of the protest with the caption “F#$k the Jab’ good lads!”;
  • “I was fleeing domestic violence so I could attend the Blag Lives Natter meeting and it was all gay people and rainbow flags there and we discussed getting drag queen story hour into primary schools ahhhhh your honour… shiiiiiieeeeeeeeet NIBBA (Don’t be afraid to use globo homo Big Lies against them..) [sic]”;
  • A link to a video clip of a police officer being assaulted during a protest with a caption that stated, “a hero has emerged! Bad music but beautiful clip, I do enjoy Bolsheviks whether urban cops or other types get taken out, even if only for a moment…”.
Union worker loses unfair dismissal over social media posts

The employee made a series of social media posts relating to Victoria’s vaccine mandates.

ACTU policies and positions

The ACTU holds a public position on various matters and campaigns – for example, domestic violence measures, LGBTIQ and anti-racism campaigns.

It also has a social media policy prohibiting employees posting or contributing to any content that damages the ACTU’s reputation.

Disciplinary meeting

Following the discovery of his Facebook posts, the ACTU directed the employee to attend a disciplinary meeting.

He requested permission to record the meeting and he also requested the union put any allegations to him in writing.

However, the ACTU denied both requests. It claimed it was not union practice to record meetings and putting the allegations in writing would be inefficient.

During the meeting, management showed the worker each post and asked him to explain how they were compatible with his employment.

The employee sought to justify the posts based on his personal political and religious opinions.

The ACTU concluded his explanations were inadequate and the posts were “completely inconsistent” with its “clear and unambiguous values and policies”.

The union summarily dismissed the employee the same day as a result of serious misconduct.

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Union worker claims unfair dismissal

During his unfair dismissal case in the Fair Work Commission, the worker admitted he knew the ACTU’s public policy of supporting mandatory vaccination.

However, he argued that the ACTU’s social media policy did not apply to out of hours conduct.

He also noted that he did not reveal his employment with the union on his Facebook identify.

The ACTU maintained that the employee’s summary dismissal had been justified.

It described the posts as completely inconsistent with their public policy and risked the reputation of the union.

Union worker loses unfair dismissal over social media posts Fair Work Commission

The Fair Work Commission found the ACTU had a valid reason for dismissal.

Valid reason for dismissal

Deputy president Ian Masson found the ACTU’s social media policy did not apply to the employee’s out of hours conduct.

He noted the policy focussed on the use of union’s internet, email and social media, and did not extend to social media conduct outside of an employee’s ordinary hours of work.

However, he also found the employee’s Facebook posts breached the ACTU’s code of conduct and its harassment, discrimination and workplace bullying policy.

He also found the posts conflicted with the ACTU’s public position on vaccine mandates.

Responding to the employee’s argument that the posts were his personal views, Mr Masson said:

“A right to hold and express a strongly held views [sic] does not however mean the applicant has an unqualified right to publicly espouse views that are contrary to the interests and values of his employer.”

Mr Masson found the posts brought the ACTU’s reputation into disrepute and therefore amounted to serious misconduct.

Accordingly, he concluded there was a valid reason for the employee’s dismissal.

Lack of procedural fairness

Finally, Mr Masson described the union’s refusal to put the allegations to the employee in writing as “unacceptable”, finding it denied him procedural fairness.

However, he concluded that even if the ACTU had done so, it was highly unlikely that there would have been a different outcome.

Accordingly, he found the serious misconduct outweighed the lack of procedural fairness.

Social media dangers

Industrial advocate Miles Heffernan warned workers about their social media posts.

“As this case shows, what you post on your private social media platforms can cost you your job,” he said.

“Never post anything about your employer and certainly never post anything critical of your employer or their clients.

“Remember, your private social media accounts are not private – so think before you post.”

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