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Tuesday 18th October 2016
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Company okay to sack Facebook bully - but must pay him $28k
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In today's Health & Safety Bulletin:
- Decision right, but process failed worker
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 | A maintenance fitter at a Broken Hill Operations (BHO) mine wasn’t unfairly dismissed for using Facebook to belittle his work supervisor, according to Fair Work Commissioner Hampton, in Adelaide last week. |
But because the investigation by his employer lacked fairness, he was awarded more than $28,000 as compensation.
The fitter was at his home on 1 April 2016 when he was among several BHO employees involved in a series of Facebook posts. These posts consisted of a photo of a BHO employee at work wearing a cap with an exceptionally large peak, to which a number of comments were made in response.
The posts, and the derogatory comments about the wearer of the hat, were brought to the attention of the workers’ supervisor, who often wore a hat with a large peak, who in turn, showed his managers.
It was alleged by BHO, and the commissioner agreed, that the employee said to be the focus of the posts was a Relief Maintenance Supervisor who, the Court was told, had also been subjected to conduct by a group of employees at BHO that would readily fall within the category of bullying behaviour.
Prior to the social media (Facebook) incident, the Relief Maintenance Supervisor:
- had his tools disappear from the workplace and then appear in his locker or elsewhere;
- found the lock for his locker covered in superglue;
- had holes drilled into water tanks that were marked for him to take home, rendering them useless;
- found his drink bottle vandalised with the words “f***wit c***” written on it and later having lens cleaner cloths and grasshoppers pushed into another drink bottle;
- had some personal items stolen (later replaced by BHO); and
- discovered offensive graffiti aimed at him (involving the depiction of a hat with a large peak in the context of an explicit sexual reference) drawn on the inside of a toilet door.
The Relief Maintenance Supervisor had advised employees, including the fitter, that he had been the subject of unreasonable and inappropriate (bullying) conduct and that this must stop.
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There’s every chance that bullying is happening in your workplace – without you even knowing it.
Click here to discover a simple way to identify workplace bullying AND help prevent it from occurring in the first place.
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The dismissal
BHO conducted an investigation into the Facebook incident and determined that the comments made by the fitter about the ‘peaked cap’ were intended to belittle and ridicule the Relief Maintenance Supervisor and that this was in contravention of BHO’s policies and procedures. The fitter was subsequently dismissed on 22 April 2016.
But the fitter contended that the dismissal was unfair because:
- he was not at work when he posted the comments on Facebook;
- he believed his Facebook settings were such that only his Facebook “friends” could view his comments;
- the comments he made did not name, nor were intended as a reference to, any BHO employee and therefore not intended to belittle or ridicule the Relief Maintenance Supervisor or any other BHO employee;
- he was unaware of the content of any social media policy and had received no training in this respect;
- BHO had not taken appropriate steps to investigate and prevent the earlier workplace bullying of the Relief Maintenance Supervisor and the dismissal in that context was also disproportionate and unfair;
- he objected to particular management staff being part of the investigation on the basis that he did not believe they could be impartial;
- he was not given notice of, nor provided with an opportunity to respond to, some of the reasons for dismissal; and
- several other BHO employees were involved in the incident or related conduct and were not subject to comparable disciplinary action, or in some cases, any disciplinary action at all.
In response, BHO contended that the dismissal was not unfair because:
- the fitter’s comments on Facebook were made to belittle and ridicule the Relief Maintenance Supervisor, who had previously been subject to bullying conduct by a group of BHO employees;
- the comments were in contravention of BHO’s policies and procedures, in particular its Social Media Policy and Code of Conduct requirements;
- the fitter was notified of, and given an opportunity to respond to, the actual reasons for dismissal;
- the fitter’s denial of the intended target of his Facebook comments, and the absence of any contrition or understanding of the impact of his conduct as revealed during the course of the investigation, were taken into account by the employer and also provided justification for the dismissal; and
- the penalty of dismissal was not disproportionate to the actions of the fitter, particularly as he was already on a final warning in connection with related conduct.
In June 2015, the fitter was issued with a final written warning following a complaint made about comments he had made to a trainee drill fitter that he was not pulling his weight and leaving work for others.
The final warning issued to the fitter by BHO included the statement:
“Several direct and indirect complaints were received and investigated relating to Clint’s bullying and harassing behaviour including; swearing at people, rude comments, unpleasant to be around, creates a ‘toxic atmosphere’ and is belittling towards other employees.
“[The fitter’s] behaviours and interpersonal interactions will be closely monitored for a period of six months, which will require a roster change to all day shift… ”
Other requirements were that the fitter attend bullying and harassment training and that the consequences of a failure to improve may result in termination of employment.
However, no steps were taken by BHO to organise the bullying and harassment training for the fitter.
The process
On 4 April 2016, BHO commenced an investigation into the Facebook posts. The fitter was notified on 8 April 2016 that he was being stood down with pay pending an investigation. Three other employees were also stood down as part of the process conducted by BHO.
On 22 April, the fitter was advised of his dismissal in a letter from the General Manager, which stated the company was terminating his service, with notice, because the comments the fitter posted on Facebook were made to belittle and ridicule a fellow employee which resulted in considerable upset to the employee. Also, that his behaviour had breached company policy and workplace standards and had the potential to negatively impact on the reputation of the Company.
It was also mentioned that the fitter was already on a final written warning issued on 17 June 2015 for behaviours of a similar nature towards another employee.
The summary
In summing up, Commissioner Hampton said he found that a valid reason for dismissal existed but, on balance, “termination was unfair given all of the circumstances including the extent of procedural unfairness.”
“I have found that [the fitter’s] dismissal was harsh and unreasonable, and therefore unfair within the meaning of the Act.”
The Commissioner found that reinstatement was inappropriate and ordered BHO to pay the fitter $28,471 instead.
Action you can take
As you can see, getting the process wrong can be costly, even if the Court finds in favour of your decision to dismiss an employee.
Portner Press’s The Bullying Guide is a 50-page eBook written by the team behind the Health & Safety Handbook. It will help you to identify exactly what constitutes bullying, how you can prevent it and what you should do if an allegation of bullying is made in your workplace.
The Bullying Guide also contains a 4-page sample Bullying and Occupational Violence policy and a sample Code of Conduct.
Get your copy before you accidentally make a mistake that costs you thousands of dollars.
Keep up the good work,  Jeff SaltonEditor, Health & Safety Bulletin
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