Social Media, Work Colleagues and Alcohol – Not a Good MixMarch 26, 2018
The FWC decision of Luke Colwell v Sydney International Container Terminals Pty Limited  FWC 174 has outlined the parameters for when out of hours social media use has a relevant connection to the workplace in cases of sexual harassment.
On a Tuesday evening during a rostered week off work, the employee returned home after drinking at a hotel. While continuing to drink at home he received a pornographic video by Facebook Messenger from a female friend which he then forwarded by Messenger to his Facebook friends which included 16 male and 3 female work colleagues as well as the Branch Secretary of his union.
The employee received a mixed reaction from the individuals that received the pornographic video, with one female work colleague in particular asking that he not send this type of message. The employee later posted a public Facebook message apologizing for his post.
The employer became aware that the employee sent the pornographic video to his work colleagues and commenced an investigation despite the fact that there was no complaint from any of his work colleagues.
Interestingly, the employer had a sexual harassment policy which did not specifically purport to cover conduct outside the workplace, nor did the employer have a separate social media policy. However, the employer maintained that unwelcome conduct outside the workplace that had a nexus to the workplace, was an issue for the employer to manage at the workplace. The employer’s position in this regard was based on its duty of care towards its employees.
The employer also maintained that it had been trying to increase the number of women in the industry through a number of initiatives.
The employer decided to dismiss the employee with payment in lieu of notice on the basis of serious and willful misconduct including breach of company policy for using social media to send a pornographic video to a number of employees including female employees.
The employee claimed unfair dismissal, essentially on the basis that there was no valid reason for dismissal as his conduct arose outside of the employment relationship.
The FWC dismissed the employee’s claim on the basis that it was the employment relationship that led to the employee sending the pornographic video to 19 of his work colleagues. In other words, the employment of the employee and the 19 of his work colleagues was the relevant nexus (or connection) as the evidence suggested that the employee recipients only became Facebook ‘friends’ because of their employment with the employer.
The FWC also indicated that if there is a relevant nexus or connection between an employee’s out of hours conduct and the interests of an employer as outlined in the employer’s policies and code of conduct, then the employer is entitled to conduct an investigation into these matters.
The FWC accepted that the employer was responding to the dissemination of pornography to its employees and that in this case the sending of the pornographic video spilled into and impacted upon the workplace. As a result, the FWC found that the employer had a valid reason for dismissal.
If you would like to know more about out of hours conduct and the relevant connection to the employment relationship, please contact a Livingstones consultant on 07 3833 1200.
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