FWC ordered an employee dismissed for posting inappropriate comments on social media be reinstated

Published 3 September 2016

The Fair Work Commission ordered the reinstatement of an employee of Centrelink who was dismissed for misconduct after posting inappropriate comments on social media.

In 2015, Mr Starr had his employment at Centrelink terminated after he made a number of comments on social media sites.

The Department of Human Services claimed the comments breached the APS Code of Conduct. Notably, the Department of Human Services believed Mr Starr had provided specific guidance, criticised and made derogatory comments about the Department and customers of the Department and disclosed information not publicly available.

Mr Starr submitted that he was remorseful of his actions and recognised some of his comments were unacceptable. He also stated that he did not intend to harm the Department and was trying to assist people.

The Commission ruled the dismissal could not be found to be ‘harsh’ under sections 387(a)-(g) of the Fair Work Act 2009. The Commission ruled that Mr Starr had engaged in behaviour that constituted a valid reason for dismissal and he was notified of this reason and given an opportunity to respond as required by sections 387(a)-(c) of the Fair Work Act 2009.

The Commission found 6 additional matters relevant in determining whether the dismissal was harsh. These were:

  • The length and quality of Mr Starr’s service
  • A lack of evidence that the Department was damaged by Mr Starr’s conduct
  • Mr Starr’s remorse for his actions and it being unlikely for him to engage in similar behaviour in the future
  • The assertion that Mr Starr “deliberately sought to publicly damage the reputation of the department” was found to be unsubstantiated
  • The dismissal had serious consequences for Mr Starr as his limited qualifications would make it very difficult for him to find another job
  • Mr Starr was dismissed due to a range of findings about his conduct and many of these were unjustified

The Commission ruled the dismissal was unjust because it was disproportionate to the misconduct and there were strong indications that the conduct would not be repeated. Further, The Commission found many of the grounds relied upon were unjustified and the consequences for Mr Starr were severe.

The Commission ordered Mr Starr to be reinstated but denied making an order for lost remuneration.

Read the full decision here

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