Whilst the employee argued he and his male co-worker had “posted similar kinds of stuff,” his colleague was “personally and professionally embarrassed” by the sexually offensive nature of the post. The female colleague gave evidence demonstrating that she was “disgusted, offended and humiliated by the [Facebook] post.” The Commission heard evidence that, of the applicant’s approximately 150 Facebook friends, 68 continued to, or previously had worked for the employer.

The ex-employee submitted there “was no correlation” between the Facebook video and his “annoying practical joke” because he had already forgotten about the post. Commissioner Bissett was not satisfied the two actions were a coincidence. She held the act of placing sorbolene cream on the male colleague’s desk was a "boorish" act that "compounded his Facebook misdeed.” Whilst she accepted his male colleague had also made "crass and immature" Facebook posts, they did not suggest sexual activity, implicate the employer’s enterprise and  were not the subject of a complaint.

Commissioner Bissett held the “conduct displayed an appalling lack of judgement and concern for the effect making such a post might have on his two colleagues.” The employee’s conduct affected their health and safety which “exposed them to humiliation and potential ridicule at work.”

However, Commissioner Bissett ultimately concluded that "on a fine balance," the employee’s termination was "disproportionate to the gravity of the misconduct,” The employee had never been subject to disciplinary action, the incident was a “one-off,” and whilst the misconduct was serious, she was not convinced it justified termination.

In finding the dismissal harsh, Commissioner Bissett sought submissions as to an order for compensation. Throughout the investigation, the employee’s “deliberate and objective contempt for management” and suggestion of “seeking retribution on those who dobbed him in” highlighted that reinstatement was “untenable.”

This case highlights the importance of correctly handling investigations of misconduct as well as reaching a reasonable conclusion in all of the circumstances. Prior to disciplinary action, the nature and seriousness of the offence must all be considered before a final decision is made. Attend our Managing Termination, Unfair Dismissals and Redundancy to increase your knowledge of counselling and discipline processes, and how to best manage an unfair dismissal claims.