A recent decision of the Fair Work Commission has confirmed a proactive employer’s approach to investigating an out of hours incident involving an employee, social media and inappropriate material.
In the decision Cowell v Sydney International Container Terminals Pty Ltd  FWC 174, the Commission allowed an employee’s sacking for misconduct even though the employer had commenced an investigation into misconduct prior to any complaint being made.
The Employer became aware of the inappropriate material after it was forwarded to the Employer’s HR manager. The HR Manager then unilaterally commenced an investigation into the inappropriate material.
The Commission agreed that the use of social media by the employee to send inappropriate material on Facebook messenger was not only sufficient grounds for conducting an investigation but also sufficient grounds for termination.
The Commission agreed that the after-hours use of Facebook by the employee was inappropriate because it was concerned with the dissemination of pornographic material to other staff, rather than the private viewing tastes of the employee in question.
This case is a stark reminder to employers that you don’t necessarily need to wait for a complaint to be made before investigating misconduct by an employee and that even after hours use of social media may be sufficient cause to investigate.
If you need advice on managing social media use in your workplace, or investigating possible misconduct, please contact Adam Foster, Head of Workplace Relations on (03) 9629 9629 or email@example.com.