Unfair Dismissal: Stutsel v Linfox Australia Pty Ltd [2011] FWA 8444

Mr Stutsel, a truck driver at Linfox, was dismissed for serious misconduct. His termination came as a result of comments posted on his Facebook profile concerning two of his supervisors, which were racially derogatory and sexual in nature.

The main issue in the case was whether Mr Stutsel's actions constituted serious misconduct. A further issue was whether the termination was harsh, unjust and unreasonable. Mr Stutsel sought to be reinstated to his position

The court highlighted that at the time of the incident Linfox did not have any social media policy and further it still remained without a policy at the time of the hearing. Commissioner Roberts commented about the lack of policy that "[i]n the current electronic age, this is not sufficient and many large companies have detailed social media policies and have taken pains to acquaint their employees with those policies."

While the court found that Mr Strustel's comments were distasteful and regrettable it was held that he was not guilty of serious misconduct and there was therefore no valid reason for his termination. The court also noted the inequitable treatment of Mr Strustel as some other Linfox employees who had posted comments on his wall had not received the same treatment. For this reason the termination was also held to be harsh, unjust and unreasonable.

If a social media policy had been in place the conduct may have constituted serious misconduct and thus warranted termination.

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