TERMINATION OF EMPLOYMENT – misconduct – social media – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant was a frontline Centrelink officer – dismissed after over 21 years’ service for misconduct due to comments made from June 2012 to April 2015 on social media sites Whirlpool and Sportal – Commission noted assessment of whether valid reason for dismissal involved consideration of nature and gravity of conduct having regard to requirements of Public Service Act 1999 (PS Act) and the Department’s policies – will not usually be a valid reason for dismissal for ‘out of hours’ conduct unless conduct falls within circumstances described in Rose v Telstra – however, scope of employer control over private conduct may be greater regarding public servants [McManus] – Commission proceeded on basis that if conduct a non-trivial breach of PS Act or any policy reasonably giving effect to it, then may constitute valid reason for dismissal – Commission found valid reasons for dismissal based on references to Department’s clients being ‘spastics and junkies’ among other terms; comments to effect that large proportion of Newstart exemptions sought on basis of depression not genuine and statements that Department’s processing times ‘utterly disgraceful’, such that applicant ’embarrassed to work there’ – Commission noted various mitigating factors favouring conclusion that dismissal harsh – dismissal disproportionate to gravity of misconduct, given conduct bore no relationship to actual work performance, caused no actual detriment to Department, was engaged in impulsively and comprised a small number of comments over period of years – the length and quality of applicant’s service and his recognition of his conduct’s unacceptability indicated that the conduct would not be repeated – many of the grounds relied upon for dismissal not justified – particularly harsh personal consequences of dismissal – Commission held dismissal harsh, despite valid reasons – applicant unfairly dismissed – reinstatement practicable and appropriate – appropriate to make an order maintaining continuity of employment and period of continuous service – no order for lost remuneration as conduct worthy of significant disciplinary response – financial loss suffered a suitable sanction for conduct. Starr v Department of Human Services
