Sacking a mental health nurse who “tagged” two work colleagues to a sexually offensive video on his Facebook page was too harsh, the Fair Work Commission has ruled. Commissioner Michelle Bissett found Bendigo Health Care nurse Michael Renton showed an “appalling lack of judgment” when he posted a video of an obese woman in her underwear dropping her stomach on the back of a man on all fours while saying “how heavy is that” and “a little horsey”. Mr Renton had then “tagged” two co-workers in a comment joking that the video was the male colleague “getting slammed” by the female colleague at work. That same day, Mr Renton admitted he placed five blobs of sorbolene cream and tissues on the male worker’s desk. Bendigo alleged the props were to make it look like the male worker or someone else had masturbated at his desk. The female colleague had become distressed by the post and the male colleague complained to human resources. Bendigo Health Care fired Mr Renton, who was an employee of almost 20 years, for serious misconduct. Mr Renton argued the sorbolene blobs were a practical joke and said it was not reasonable for the female colleague to be offended by the Facebook post, which he claimed was not sexually explicit. Commissioner Bissett said Mr Renton’s actions had affected the health and safety of his co-workers by exposing them to humiliation and potential ridicule at work. “His actions were crass, careless and showed an absence of judgement.” The Facebook post, which was visible “far and wide” including to at least 68 co-workers, also risked adversely affecting Bendigo Health’s reputation. The commissioner noted that once Mr Renton tagged a person on Facebook that allowed friends of the tagged person to see the post. The Facebook friends of anyone who commented could also see the post. “This consequence of posting on Facebook is so often overlooked but cannot be ignored.” It is possible to use Facebook security settings to restrict access to tagged posts but many users do not. She found that “slamming”, while not sexually explicit, had strong sexual overtones. “If the video was of a person slamming a door the context, and therefore meaning, would be quite different.” She said Mr Renton “should have listened to the voice in his head that suggested [the female colleague] might have been offended by the post and, having done so, not proceeded with the post”. “Unfortunately, he did not and the consequences for him and others are far reaching.” Mr Renton’s placing blobs of sorbolene cream on the male colleague’s desk was a “boorish” act that “compounded his Facebook misdeed”. While she accepted the male colleague had also made “crass and immature” Facebook posts , she said those were private and did not implicate the workplace or suggest sexual activity. However, she concluded that “on a fine balance” Mr Renton’s termination was “disproportionate to the gravity of the misconduct”. She noted Mr Renton had no prior history of misconduct and also shared joint care of young children including one with attention deficit hyperactivity disorder. “Even though the misconduct was serious, because of its one-off nature I am not convinced that it justifies the decision to terminate Mr Renton’s employment although I can appreciate why Bendigo Health reached the conclusion it did.” Commissioner Bissett found reinstatement was “untenable” in part because Mr Renton had told the male colleague not to talk to “that red headed c— about what’s happened”, referring to Bendigo’s business unit manager. She directed him to file submissions on possible compensation.
