NSW Unfair Dismissal for Facebook Photo?

[James1111]

Just over a month ago, I was having a laugh with two male employees in the lunchroom and made a stupid joke. I had a banana on the table in front of me, I stood next to the table so the banana was "in front" of me and pretended to yawn (I know it was silly, the other employes were making jokes about the bananas on the table). Another male employee took a photo of me in this pose on his phone and later posted it on Facebook, even though he was told that it "better not end up on Facebook".

My employer said it was a breach of its social media policies, and gave me a final warning. I used the word "slut" (again while joking around with another male employee), they said because I had received a final warning for the photo they are now terminating my employment.

I don't excuse my behaviour. I was just trying to have a laugh, but can I be held responsible for someone taking a photo of me and posting it on their Facebook account? I don't believe I breached any social media policies. Would I have an unfair dismissal claim?

 

[Paul Cott]

Hi James,

On the limited information you have given, yes it is possible for action to be taken (including termination of employment) on the facts as you have stated.

There is more to it than that though as to whether it is justified in the particular circumstances. Things such as whether you read or understood the (or any) social media policy, whether it became part of your employment contract etc can all go into it.

Hope that helps James.

Paul.

 

[James1111]

Thanks for your reply. We have all been made to sign the code of conduct, but have never read it, or gone through it. As an ex-manager myself, I was always told "just get the staff to sign the form, you don't have time to go through it with them".

The code of conduct reads; "posting of inappropriate, false or malicious comments or materials online regarding the Company, your workplace, your colleagues or customers."

Considering the fact I didn't give him permission to take the photo, or to post it on facebook, can I be held responsible for this? In my opinion I didnt break the social media policies as I didn't post the photo, I was however guilty of making a stupid joke. I made no excuses for my behaviour, I agree that i shouldn't have sworn (i swore in our prep area out the back), I just think it was a very harsh penalty, considering I have been with the company for 9 years and 11 months, and have had a clean record until these two incidents.

I'm kicking myself about it, I should've known better. As to whether I have a leg to stand on in fighting it is what I'm trying to work out.
Thanks.

 

[Owens Lawyers]

Hi @James1111

Whether the dismissal is unfair or not will depend whether it is deemed harsh, unjust or unreasonable in the circumstances. There may be an argument in your case that it was unfair.

If you are a covered by the Fair Work Act (most employees are) you have only 21 days (usually from the last day you worked) to make an unfair dismissal claim to the Fair Work Commission). You should get advice from Legal Aid, a community legal centre or a private lawyer as soon as possible, as time limits are usually strictly enforced.m