This week Stuff reported about an Australian salesman who was sacked after making an “offensive and vulgar” Facebook posting during work hours. The salesman challenged the dismissal as unfair and won his case and was awarded A$6238 (NZ$6720).
So, what went so wrong with this case and what can New Zealand businesses learn from this case?
First, the facts:
The salesman, Colby Somogyi did make a posting on Facebook during work time. The posting including a statement “…how much of the bosses c___ did you suck?”
Somogyi’s manager, Tony Ottobre upon being informed of the posting, called him in and had a one-minute conversation that effectively told Somogyi he was dismissed and to “return all company property to the office” and offered no reason why he was sacked.
And, there, good people, lies the problem.
Somogyi was not offered the opportunity to explain the posting. Nor, it appears, was he informed that his job was at risk because of the posting. It would appear that his manager had made up his mind to dismiss Somogyi for the “offensive and vulgar” comments. These comments were construed as being comments about Somogyi’s employer. In deed, Somogyi’s employer, LED Technologies, went so far as to confirm, at the Fair Work Commission (Australia’s equivalent to our Employment Relations Authority), that they sacked Somogyi because his posts were offensive, were directed at its business, and were made while at work.
Had LED Technologies made a proper enquiry into Somogyi’s posting they would have found out that the posting was not about LED Technologies, it was about Somogyi’s mother’s employer, who was allegedly trying to push her out of her role.
While Somogyi had made the posting at work, and the language he used was offensive and vulgar, the Fair Work Commissioner said that the phrase he had used, regrettably, was increasingly part of the common vernacular.
If LED Technologies had followed due process they may have come to another decision, which would have been on Somogyi making a posting while at work, which may have resulted in a warning but not dismissal.
As stated above, Somogyi won his case, but did not seek re-instatement with LED Technologies. He instead pursued and secured a new job with a new employer. We don’t know what happened to Somogyi’s mother or her employer.
The lesson for NZ Business
No matter how clear cut a situation may appear, it will not always turn out to be the case. Even if you think you do have an open and closed case of serious misconduct, do not go into these matters with your mind already made up. You MUST follow due process.
Informing the employee of what you believe they have done wrong – being as specific as you can
State what company rule(s) have been breached if the wrong doing is proven to have occurred
Inform the employee of the potential consequences should the wrong doing be proven
Advise the employee of the right to representation
Give the employee all available information to support the allegations
Give the employee reasonable time to prepare a response.
Give due consideration to the employee’s response
Undertake further investigation if required to verify the employee’s response
Keep an open mind at all times during the process
Make your decision based on ALL the facts of the case.
If you have a situation at work and need advice on the right process to follow, or help with the process, give Tony a call today on 027 698 2123 or email him at firstname.lastname@example.org