Despite the FWA full bench decision to upheld a finding that Linfox unfairly dismissed a driver who posted derogatory and offensive comments about his managers on Facebook, the full bench has warned employees that Facebook and pub conversations are not the same.

The full bench said.  "In the somewhat special circumstances of the present matter, and having regard in particular to the nature of the comments made, the limited understanding of the employee as to the privacy of Facebook communications and the employee's long and satisfactory employment record, the Commissioner decided that the dismissal was harsh, unjust or unreasonable and ordered reinstatement and payment of lost wages."

"Unlike conversations in a pub or cafe, the Facebook conversations leave a permanent written record of statements and comments made by the participants, which can be read at any time into the future until they are taken down by the page owner. Employees should therefore exercise considerable care in using social networking sites in making comments or conducting conversations about their managers and fellow employees."

The full bench determined the dismissal was harsh because of the drivers age and his ignorance of the privacy of Facebook communication

The full bench continued that in the driver's case, even if his Facebook posts provided a valid reason for his dismissal, it would have been harsh, unjust or unreasonable because of:

his long period of satisfactory employment at Linfox, his age and job prospects;

A contributing factor in the decision was that Linfox did not have a policy on employees' use of social media, the full bench "The claim of ignorance on the part of an older worker, who has enthusiastically embraced the new social networking media but without fully understanding the implications of its use, might be more viewed differently in the future'.

Linfox Australia Pty Ltd v Glen Stutsel [2012] FWAFB 7097 (3 October 2012)