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Managing people

Facebook insults justified sacking

A tribunal has ruled that a disgruntled bartender who called their bosses 'c*nts' on social media was justifiably dismissed, despite the employer's HR shortcomings.

5 December 2023

Despite the small business’s ‘glaring lack of knowledge’ about proper HR procedures, the bartender’s ‘wholly disrespectful slur’ on social media outweighed the shortcomings and warranted immediate sacking.

A casual worker at a Melbourne bar told management they planned to take a six-week holiday from 20 May to 2 July 2023, then quit the job at the end of July. After some discussion, they agreed the bartender would be allocated one shift per week from 6 July to the end of the month.

However, the number of shifts the employer was able to offer staff was declining, and two weeks before the end of the holiday, one of the co-owners sent the bartender a message indicating there might be no available work when they returned from holidays. The co-owner tried to explain the circumstances and rationale, but the tone of the exchange quickly became fractious.

The bartender contacted another manager and after further discussion, it was established one shift per week would most likely be available. The somewhat disgruntled bartender didn't seem to accept the employer’s apologies for any misunderstanding and confusion but confirmed their availability to resume work from 9 July.

Following this exchange, the managers and owners raised concerns about the bartender’s conduct before going on holiday.

The owners then emailed the bartender with the header ‘Formal Conditions for Notice‘, saying that since the bartender was regularly late for work, gave away many free drinks, resisted the directions of new management, and had been rude or hostile with other staff and regular customers, they no longer felt comfortable with the bartender working unsupervised shifts.

After a further exchange of emails, the bartender believed they’d been sacked. The bartender then posted an outline of their grievances with the owners and management of the bar on the business’s staff Facebook chat, referring to them as ‘c*nts’, after which the employer closed off email communication with them.

The bar’s owners and managers discussed this post and agreed that calling them ‘c*nts’ was inappropriate. One of the co-managers rang the bartender and told them not to come in for any remaining shifts.

The bartender made an unfair dismissal application to the Fair Work Commission. The business owners objected on the basis that there had been no dismissal, as their understanding was that the bartender had given notice of quitting at the end of the month.  

In the Fair Work Commission

The Commission first established that the phone call telling the bartender they would not be offered further shifts was effectively a dismissal.

The Commission then considered whether the business had complied with the ‘Summary dismissal’ section of the Small Business Fair Dismissal Code.

That section states that to justify immediate dismissal, the employer must have a genuine belief, based on reasonable grounds, that the employee’s conduct was sufficiently serious to justify immediate dismissal.

Deputy President Richard Clancy noted that the business owners decided to sack the bartender and notified them of that decision without first warning them and giving them an opportunity to respond to the owners’ reasons. This showed the business owners were ‘devoid of sophistication when it comes to human resource management and processes’ and ‘exhibited a glaring lack of knowledge of how to go about things procedurally’.

He said the employer's failure to comply with the Fair Work Act’s requirement for a prior warning and a chance to respond was likely due to the absence of dedicated HR management specialists or expertise, which was a consequence of it being a small business.

Regardless of any limitations the business managers may have shown, Deputy President Clancy said he did not accept any suggestion that choosing to describe them as ‘c*nts’ in the business’s staff Facebook chat was justified.

He said the bartender could have chosen to work the remaining hours as offered or, equally, as a casual employee, they could have quit immediately. Instead, the bartender chose to direct a ‘wholly disrespectful slur’ towards the owners of the business and its management in a public manner by describing them as ‘c*nts’ on Facebook.

"This warranted immediate dismissal and its seriousness outweighs any suggestion of procedural deficiency on the part of [the business]’" he wrote.

He was satisfied that the sacking was not harsh, unjust, or unreasonable, and the dismissal complied with the Small Business Fair Dismissal Code.

The application was dismissed.

What it means for small businesses

Small business owners do not have to tolerate being insulted on social media by employees, but summary dismissals should comply with the Small Business Fair Dismissal Code.

Read the decision

Reema Saad v M.A Lisek & S.S Louth-Robins [2023] FWC 2704 (15 November 2023)

Gaby Grammeno

Contributor

Gaby has extensive experience as a researcher, writer, editor and project manager on a wide variety of information products, including books, guides, reports and submissions.

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