In Thompson v 360 Degrees Finance Pty Ltd (2021), a finance broker with 7 years of service was summarily dismissed for serious misconduct after posting two memes to his personal Facebook page.
The first meme included an image of him and a female colleague, with the text “You pulled out right?” “Yeah, of course”, and a picture of a washing machine leaking suds onto the floor. The finance broker had received his colleague’s consent to post the image.
After the image was posted, the female colleague received several comments or responses from others. She asked the finance broker to remove the meme, which he eventually did.
Later that evening, the finance broker posted a second meme to Facebook with a picture of himself and the words, “That moment after you’ve dropped a meme with the aim to upset some c**ts… And you get to hear, c**ts are upset”.
As a result of the Facebook posts, the finance broker was summarily dismissed. He made an unfair dismissal claim. A key issue in the proceeding was whether the employer’s workplace culture condoned the employee’s conduct.
The Fair Work Commission (FWC) found it was abundantly clear that the standard of conduct deemed appropriate at the employer’s workplace fell far below what might objectively be seen as “normal” at a workplace. The FWC noted, however, some of that management action occurred at a time when the business was under different ownership. The new owners had given their employees training in its policies and procedures, and steps were being taken to improve the workplace culture, though the FWC observed “there was still a considerable way to go”.
Multiple ‘final’ warnings were provided to the employee for similar conduct in the past. The FWC noted this may have caused some opacity in the mind of the employee as to the consequences of his conduct.
Ultimately, the FWC was satisfied the posting of the first meme, coupled with his (arguably retaliatory) posting of the second meme, constituted serious misconduct. The FWC ruled the employee’s behaviour was inappropriate and serious enough to warrant his dismissal. His conduct was unlawful sexual harassment.
The employee’s lack of insight or remorse for his conduct clearly counted against him. The FWC rejected the employee’s argument that he wasn’t afforded the opportunity to be properly heard during the disciplinary meeting, noting he could have remedied that by responding in writing to the show cause letter, but chose not to avail himself of that opportunity.
The employee sought to compare his conduct with that of the manager who decided to dismiss him, alleging that he yelled and swore at staff in a meeting. The FWC noted this conduct would, if substantiated, also likely fall short of the ordinary standards of civility one expects in a modern workplace. However, the conduct was considerably different in nature to the finance broker’s behaviour. According to the FWC, the fact the comparison was made showed the employee’s lack of understanding of why his own conduct was inappropriate.
The FWC considered the underlying issue with the conduct was the sexually explicit and public nature of posting the first meme to social media and the reasonably foreseeable consequences that action might have. Even in a workplace that typically tolerates a more “robust” workplace culture, the conduct was still sufficiently serious and inappropriate, and constituted a valid reason to terminate the employee’s employment.