The facts

The employee, a finance broker, commenced employment in February 2013.

On 17 June 2020, after obtaining permission from a colleague, the employee posted a meme on his personal Facebook account. The meme included sexually suggestive content. The colleague requested the meme be removed, which it eventually was.

Later that evening, the employee posted a second meme mocking the request to remove the first meme. The second meme included a picture of the employee and some incredibly crass and offensive language.

On 18 June 2020, a disciplinary meeting was held. Following the meeting, the employee was issued with a show cause letter. The letter referenced the memes and highlighted a previous warning for similar inappropriate behaviour. The employee admitted posting the memes but considered his behaviour was not inappropriate as he sought permission before posting and subsequently removed the post when asked.

The employer was not satisfied the employee had provided any reasons to mitigate his behaviour and resolved to dismiss the employee on 19 June 2020.

The employee filed an unfair dismissal application arguing the culture of the workplace was a relevant factor – it allowed this type of behaviour and as a consequence dismissal was a harsh outcome.

The Decision

In determining whether the dismissal was harsh, unjust or unreasonable, the Commission took into consideration the culture of the workplace. Acknowledging the culture fell short of the standards reasonably expected, the Commission nonetheless concluded the conduct was sufficiently serious and established a valid reason for dismissal. The Commission was also satisfied the employee was notified of the reason, offered a support person and afforded the opportunity to respond to the allegations. The Commission dismissed the application.

Learnings for business

This case highlights the importance of having robust policies and procedures covering topics including sexual harassment and social media use.

It is also a timely reminder that employers must follow a fair and reasonable disciplinary process and be able to demonstrate the steps taken.

How the Victorian Chamber can help

The Victorian Chamber Advice Line is available to provide support and help businesses navigate managing disciplinary and termination processes. In addition, our workplace relations consultants have a wealth of experience in undertaking and conducting disciplinary processes alongside businesses.

Received a General Protections or Unfair Dismissal claim? Our workplace relations consultants are on hand to help explain the processes, draft responses and submissions, and represent businesses at the Fair Work commission.

[2021] FWC 2570