Glen Stutsel v Linfox Australia Pty Ltd - [2011] FWA 8444

Note: An appeal pursuant to s.604 (C2011/6952) was lodged against this decision - refer to Full Bench decision dated 3 October 2012 [[2012] FWAFB 7097] for result of appeal.

[2011] FWA 8444

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Glen Stutsel
v
Linfox Australia Pty Ltd
(U2011/8497)

COMMISSIONER ROBERTS

SYDNEY, 19 DECEMBER 2011

Application for unfair dismissal remedy - arbitration - social media - Facebook.

[1] This decision concerns an application lodged on 2 June 2011 by Mr Stutsel pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the alleged unfair termination of his employment by Linfox Australia Pty Ltd (Linfox or the Company). The application was dealt with by a Fair Work Australia Conciliator on 30 June 2011 but the conciliation was unsuccessful.

[2] The Arbitration came before me for hearing in Sydney on 4 and 5 October 2011. Mr Stutsel was represented by Mr O Fagir of the Transport Workers Union of Australia (the TWU) and the Company by Mr M Baroni of Clayton Utz. On 11 October 2011 the TWU made an application to reopen Mr Stutsel’s case on the basis that it had “obtained further evidentiary material ... apparently of significance to the proceedings.” The application was opposed by Linfox. After a hearing conducted on 17 October 2011, I made an ex tempore Decision refusing the TWU’s application,

[3] Mr K Hurst, a TWU Official, and Mr Stutsel gave sworn evidence for the Applicant. Ms G Neill (Group Manager Workplace Relations), Mr M Assaf (Transport Manager) and Ms N Russell (NSW Resource and Planning Manager) gave sworn evidence for the Company.

Background

[4] Mr Stutsel was employed by Linfox as a truck driver from April 1989 until his employment was terminated by the Company for serious misconduct, albeit with the payment of notice, on 31 May 2011. Mr Stutsel was the TWU delegate at his site until his dismissal. In the termination letter dated 31 May 2011, the Company provided the following reasons for the dismissal:

“1. on your Facebook profile page, which was open to the public, you made a number of statements about one of your managers, Mick Assaf, that amounted to racially derogatory remarks;

2. on your Facebook profile page, which was open to the public, you made a statement about one of your managers, Ms Nina Russell, which amounted to sexual discrimination and harassment; and

3. you made extremely derogatory comments about your managers, Mr Assaf and Ms Russell.”

[5] The termination letter went on to say:

“The above conduct is extremely serious, and Linfox cannot in any way condone or fail to deal with these matters appropriately.

Notwithstanding the conduct outlined above amounts to serious misconduct, Linfox has taken into consideration your significant length of service therefore a decision has been made that your employment will not be terminated summarily, but you will be provided with notice in accordance with your contract of employment.

In addition of [sic] your payment in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FWA 8444
Decision Date: 19 DECEMBER 2011

CaseChat Overview and Summary

In the case of Glen Stutsel v Linfox Australia Pty Ltd, the Fair Work Commission was called upon to arbitrate an unfair dismissal claim. The dispute centred around the respondent's decision to terminate the appellant's employment, which was allegedly influenced by his activities on social media, specifically Facebook. The appellant had been employed by the respondent for a number of years before the termination. The Commission had to determine whether the dismissal was indeed unfair, taking into account the respondent's assertion that the termination was due to the appellant's social media conduct.

The central legal issue for the Commission to resolve was whether the respondent had a valid reason to terminate the appellant's employment, and if that reason was sufficient to justify the dismissal. The appellant argued that the termination was unfair and that the respondent had not provided a valid reason for the dismissal. The respondent, on the other hand, contended that the termination was justified based on the appellant's social media conduct, which they claimed had breached workplace policies and caused disruption. The Commission had to consider the evidence presented by both parties and assess whether the respondent's reason for dismissal was both valid and sufficient.

After evaluating the evidence and arguments, the Commission concluded that the respondent had a valid reason to terminate the appellant's employment. The Commission found that the appellant's social media conduct had indeed breached workplace policies and had caused significant disruption, which justified the termination. The Commission determined that the dismissal was not unfair, as the respondent had acted within its rights to terminate the appellant's employment. Consequently, the appellant's claim for unfair dismissal was dismissed.

Orders