In September 2022, two firefighters were dismissed over posts they separately made in a private Facebook group.

The ‘Sickos’ group primarily featured pornographic content, racist comments and some work-related conversations. Most members were a mixture of current and former employees, together with some members with no link to the employer.

The employee who created the group regularly posted sexually explicit content, including once while on duty at work, and derided individuals who left the group.

The second dismissed employee inappropriately shared content of women in swimwear and without clothing. He inappropriately posted an image of a colleague returning from personal leave, and, in reference to a newly purchased fire truck, posted a photo of an old bicycle with a fire extinguisher placed behind the seat.

A third firefighter, who was not dismissed, similarly posted a video of a woman in her underwear, and an image captioned, ‘Call a girl beautiful one thousand times and she won’t notice. Call her fat once and she’ll never forget’.

Decision

Ultimately, the FWC upheld the dismissal of the first firefighter, primarily because posting pornographic content while on duty provided a valid reason.

The FWC was more lenient in other aspects of the case. It acknowledged that employees are entitled to a “private life” and ruled that name-calling people who left the private group was “nothing more than examples of how male blue-collar employees talk to each other”. These comments were not found by the FWC to be bullying or harassment.

It also ruled that during Saturday night shifts firefighters were allowed to occupy themselves so long as they did not fall asleep. This included the view that dismissal for viewing pornography on one’s own device while at work in a single incident would be deemed harsh, as reflected in B,C and D v Australian Postal Corporation 2013. The FWC found, however, that the first firefighter posting pornography on duty satisfied the definition of serious misconduct.

It was also revealed that the employee’s conduct was ‘abusive’ and ‘inappropriate’ during the termination meeting, which “cannot be condoned”.

The second firefighter who posted inappropriate images and breached workplace policies within working hours, meanwhile, was reinstated and back-paid to the date of his dismissal after the relevant manager changed his evidence. Although the post comparing a new fire truck with an old bicycle could be deemed offensive and a direct breach of the organisation’s bullying and harassment policy, the manager based the dismissal on more posts found to be misattributed to the second firefighter.

Since the employer dismissed the second firefighter on inaccurate information and treated him differently from the third firefighter who had demonstrated similar behaviour and wasn’t dismissed, the FWC found the termination was unjust and unreasonable.

Learnings for business

Ultimately, the employer determined that both of its employees breached its bullying and harassment policy, social media policy and code of conduct in various aspects.

The firefighters both argued that they had received little training on workplace policies and did not fully understand how posting online could impact their employment relationship.

The FWC highlighted the importance of training employees on workplace policies and expectations, noting the employer should hold ongoing face-to-face training rather than encouraging employees to ‘tick’ off that they have read the workplace handbook.

The FWC found that it was “difficult to understand” why the employer had not conducted training during regular quiet Saturday shifts.

The case emphasises that proactive employers who ensure employees are regularly trained about workplace policies and expectations are more likely to be able to defend unfair dismissal claims at the FWC. This matter also highlights the importance of ensuring evidence is clearly understood and objectively assessed before any dismissal decision.

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For assistance on any aspect of your employment obligations, please call the Victorian Chamber Workplace Relations Advice Line on 8662 5222.

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