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Even suspected ISIS supporters entitled to procedural fairness

​Legal Case: Unfair dismissal

​Published: 18 November 2016

A baggage handler who posted that ‘we all support ISIS’ on Facebook took his employer to the Fair Work Commission after being dismissed.

Facts

A Perth Airport baggage handler was suspended after managers received complaints about his ‘extremist’ posts on Facebook. One of the offending posts included photos of a demonstration against ‘American/Russian led aggression’ in Syria, with a comment by the baggage handler that ‘we all support ISIS’.

Employer’s response

The man’s employer, Aerocare, said the posts could pose a significant security concern given that he had an airport security card. It also claimed that he had breached its social media policy and potentially damaged its reputation. 
At a meeting to discuss the complaints, the baggage handler told Aerocare that he was against extremism and claimed the posts were intended to be sarcastic. He claimed that he kept his work and private lives separate and did not identify himself as an employee of Aerocare in any of the posts.  Managers were not satisfied with this response and he was dismissed without further investigation. 

Unfair dismissal claim

The man took action in the Fair Work Commission, claiming that his dismissal was unfair because the complaints against him were not properly investigated and management did not consider his explanation. Management had simply ‘closed their minds’ to the possibility that any outcome besides dismissal might be appropriate. 

Decision

The Fair Work Commission found that given the seriousness of the matter, Aerocare should have investigated more carefully before deciding to dismiss the baggage handler. It should have properly reviewed his Facebook account. Had it done so, it would have discovered that he was not, in fact, a supporter of ISIS.  Due to its failure to properly investigate his claims, the employer had dismissed him unfairly.  

The Fair Work Commission ordered Aerocare to compensate the baggage handler for his unfair dismissal (he had got another job by the time of the order). However the commission reduced the amount of compensation awarded by 40% as it agreed that his post about ISIS was misconduct, describing it as ‘ridiculous and ‘incredibly stupid’. He was awarded $4,800. 

Take away points

  • Posts on social media made in a private capacity may still have implications in the workplace.
  • Serious complaints which could result in dismissal must be thoroughly investigated. 
  • If  someone who is the subject of a complaint offers an explanation for his or her behaviour, this must be properly investigated before making a decision about whether the behaviour justifies dismissal. 
  • A lack of procedural fairness will generally mean that the outcome of an investigation will be overturned.   
Mr Nirmal Singh v Aerocare Flight Support Pty Ltd [2016] FWC 6186 (13 September 2016)​

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