The Fair Work Commission
found that while the employee’s conduct was unacceptable, the Department’s decision to sack him over his comments was disproportionate to his misconduct and ordered that he be given his job back.
Hannah Ellis, Principal at The Workplace employment lawyers says the FWC ruling should serve as a timely reminder for employers that misconduct does not always warrant termination.
“HR professionals need to be aware that just because there may seem to be a valid reason to terminate an employee’s employment, this does not automatically mean termination will be appropriate,” Ellis told HC Online.
Vice President Adam Hatcher found although the Department had legitimate grounds to sack its employee, his dismissal was considered harsh because of mitigating factors, including the length and quality of his service.
Vice President Hatcher also found that the punishment was disproportionate to the gravity of the employee’s misconduct, which included using social media to call Centrelink clients "spastics and junkies" and "whingeing junkies", and saying he was "embarrassed" to work at the department.
The FWC heard that the Centrelink customer service officer had been with the Department of Human Services for more than 20 years and was sacked last October following an investigation into misconduct.
The Department claimed the employee breached s13 of the Public Service Act over a three-year period when he posted a number of negative and inappropriate comments about his employer and its clients on social media platforms Sportal and Whirlpool.
However, the FWC ruled that the employee caused no actual detriment to the department and his misconduct was "situational" in that his comments were made impulsively in response to online comments that he considered inaccurate.
“In this case the FWC found that the employee made the derogatory comments “impulsively and out of frustration and not maliciously”,” Ellis says.
“The outcome might have been different if the employee had been the instigator of the comments/online discussion threads but probably not on this factor alone,” she says.
The Department also argued that the officer had brought his employer into disrepute with his derogatory comments, however failed to prove to the FWC that this was the case.
“In this case, there was no evidence that the Department’s reputation was actually
damaged or that anyone actually
formed an adverse perception of the Department’s impartiality,” Ellis says.
“This is probably largely a result of the fact that Centrelink is not a commercial enterprise reliant on customer loyalty, but was also a product of the “special interest forums” in which the comments were posted,” she says.
The significance is that although the Commission found these forums were “theoretically accessible to the public”, they are not “a place where a claimant or recipient of social benefits would readily expect to find material of that nature”, Ellis says.
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The Department of Human Services has been ordered to reinstate a sacked Centrelink employee who use social media to label clients “spastics” and “whingeing” junkies.