Glen Stutsel v Linfox Australia Pty Ltd: Reinstatement of Employee Dismissed for Facebook Comments

A union delegate, Glen Stutsel has won an unfair dismissal case against transport company Linfox. Fair Work Australia ordered a quick reinstatement and compensation for lost wages in the case: Glen Stutsel v Linfox Australia Pty Ltd  [2011] FWA 8444.

The order came despite the fact that Stutsel it was claimed had made derogatory comments about two managers on Facebook. The Fair Work Commissioner hearing the case found that Stutsel's treatment was "harsh, unjust and unreasonable" in a decision which it is claimed has surprised many Industrial Lawyers.

The Commissioner indicated that comments such as “bacon hater” were “clearly in poor taste but cannot amount to being a racially derogatory remark intended, or acting to, vilify Assaf on racial grounds.” The Commissioner further said that: “In my considered view, the remark was not intended to be hurtful, even if that was not so,”

The Commissioner also described comments about a female manager also mentioned by Stutsel on his Facebook page as “an attempt at humour in my view"  that "did not contain any credible threat to R’s wellbeing.” Further, the Commissioner said “the material was metaphorical and hyperbolic” but not intended to harm.

Linfox had dismissed Stutsel saying his Facebook comments were “extremely serious, and [it, Linfox] could not in any way condone or fail to deal with these matters appropriately.” Linfox further took into account Stutsels long period of service by not immediately dismissing Stutsel and allowing him to serve out the terms of his contract and receive his entitlements. The Commissioner however, took the view that although Stutsel’s firing was procedurally fair, he did not believe Stutsel was guilty of serious misconduct and ordered his reinstatement. Stating at paragraph [98] of the case:

"In all the circumstances of this case, reinstatement is in my view both practicable and desirable. Mr Stutsel seeks reinstatement and I find that reinstatement is an appropriate remedy. My assessment of Mr Stutsel and his conduct is that he is quite capable of resuming his duties as NDC. He has shown no rancour towards Management and I believe that the employee/employer relationship can be re-established provided that there is goodwill on both sides. I have no doubt in this context that Mr Stutsel is fully aware of the comments on his Facebook page were foolish and he regrets the entire situation. Mr A is now based in Bangkok and there is nothing before me which would indicate that Mr Stutsel and Ms R are likely to come into contact with each other to any degree."

Timebase's Employment Point-in-Time Service allows subscribers to view complete histories of legislative provisions, compare and view changes over time and search for relevant content at any date. Contact Timebase for a free trial.