Social media – reinstated after pressing send to the wrong group

In brief 3 min read

The Fair Work Commission has ordered the reinstatement of an employee who was terminated for sending racist messages to a work WhatsApp group, on the grounds that his dismissal was unfair.¹

Key takeaways

Before terminating for misconduct that occurs outside of work, in addition to being satisfied that the conduct has a sufficient connection to the workplace, employers should assess whether the termination would be a proportionate response by taking into account:

• the circumstances surrounding the conduct in question;
• the employee's response; and
• the impact of that conduct on others in the workplace.

Background

In November 2019, a Reserve Bank of Australia (RBA) employee, Martin Bajelis, accidentally sent messages meant for his wife to a work WhatsApp group. The messages contained racist remarks relating to Mr Bajelis' opinion on the relative problem-solving abilities of 'Asians' versus 'Anglos'. After realising he had sent the messages to the wrong chat group, Mr Bajelis immediately deleted the messages and apologised.

His employment was terminated by the RBA in December 2019 on the basis that he had breached the RBA's Code of Conduct and workplace behaviour policy as the messages had expressed racist beliefs. In doing so, he had seriously offended a number of his colleagues which irreparably damaged their working relationship. Mr Bajelis began unfair dismissal proceedings.

Decison

The Fair Work Commission (FWC) disagreed with the RBA and held that the dismissal was unfair on the following grounds:

• Mr Bajelis had sent the messages on a work-related platform, in breach of workplace policies, and as such this was work-related conduct;
• However, the breaches were unintentional and Mr Bajelis had immediately retracted the messages and apologised. These factors reduced the objective seriousness of the misconduct such that it was not a valid reason for dismissal;
• Mr Bajelis would not express the same racist views in the future as he was truly remorseful. Holding a view about a non-work matter without expressing it in the workplace is not a valid reason for dismissal;
• The RBA failed to provide enough evidence to prove that the messages had a serious impact on Mr Bajelis' colleagues or that his conduct would preclude an ongoing work relationship between Mr Bajelis and his colleagues; and
• The termination process was procedurally flawed as Mr Bajelis was not properly notified of some of the reasons for his dismissal or given an opportunity to respond.

The FWC also took into account the significant personal economic consequences of the dismissal on Mr Bajelis and his family, including his lost access to a defined benefit superannuation scheme. Despite strong opposition from the RBA, the FWC ordered the reinstatement of Mr Bajelis to his former employment.