An employee who posted a photo of his son on a company forklift was dismissed by his employer who saw the post on Facebook. The Fair Work Commission ruled there was a valid reason for dismissal however the employee should have been dismissed on notice and summary dismissal was unfair.

The employee who worked as a trade assistant for seven years, went to his workplace on a Sunday to conduct repairs on his personal vehicle. He was employed at a business involved in the service and repair of heavy machinery and vehicles. The employee bought his 11-year-old son to work and photographed him sitting on a forklift. He uploaded the photo to his private Facebook page, knowing he was friends with his work colleague, and they would be able to access the post.

The post came to the attention of the employer and the employee was summarily dismissed for serious misconduct following investigation. The employer stated the visit to the site was without consent, and the employee did not attempt to notify them of request to attend the site outside of workhours. The employee was putting his own safety and that of his child at risk. The employer was also concerned about the impact the Facebook post would have on their reputation in the community. Therefore the employee was terminated.

After being dismissed the employee posted negative comments with the intent of damaging the company’s reputation on their Facebook page. He also criticised the company on his personal Facebook account.

The Fair Work Commission agreed that bringing his son to the worksite without permission was an error of judgement and showed the employee held no regard for the employer’s safety policies. The Fair Work Commission stated the breaches were cumulatively serious however did not warrant a summary dismissal. Because it was not serious misconduct, a summary dismissal was unfair and the employee should have been dismissed on notice, which requires five weeks’ notice or payment in lieu. Given the facts of the case and the employee’s behaviour online after being dismissed compensation was reduced to two weeks pay.

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Written by Danielle McNamee


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