Don’t ‘Drink and Dial’ by Kate Ausden

Kate Ausden Blog

Why do employers need a social media policy?

In a recent case, Sydney Trains dismissed an employee for sharing a ‘dick pick’ with a fellow employee, both of whom won’t at work.

This is a salaciously sad story.

It is about a male employee. He had recently separated from his wife, undergone an operation for a bad back and had recently been treated at a psychiatric hospital. He appears, at least from reading the case, to be desperately lonely and actively seeking female companionship.

It is, in this context, that he sends a photo of his erect penis to a female co-worker late on a Sunday night, while she was watching television with her husband and young children.

The female co-worker notified Sydney Trains about the incident, an investigation ensued and the decision was made to terminate the male employee’s employment.

How did the employer terminate an employee for conduct outside of work?

Deputy President Bull commented that “an employer should not delve into and concern itself with the private activities of its employees which occur outside working hours unless a real and relevant connection between the private activities of the employee and the employment relationship can be shown to exist.”

As Sydney Trains’ Social Media Policy was “expressed to apply to and out of work when interacting with other staff on social media platforms”, Sydney Trains was entitled to terminate the employee for his conduct, even though:

• the image was forwarded outside of work hours and not on work premises;
• the image was not transmitted on computer systems owned by the employer; and
• both employees did not work together closely.

The FWC held that the connection between the offending conduct and the employment was sufficiently close to justify termination because the employee had breached the Social Media Policy, a complaint had been lodged and the complainant had expressed concern about seeing her male colleague at work.

The unfair dismissal application was dismissed.

Mr Rodney Fussel v Transport for NSW T/A Transport for NSW [2019] FWC 1182 (22 February 2019)