[17] The applicant acknowledged that his Facebook friends included other of the respondent's employees and that they could potentially have seen the posts he made on the CAP page and the one he had made about Mr Hoye. He conceded that even if he had set his Facebook profile to private, these co-workers would have been able to see the post. Even so, the applicant claimed it was 'just a joke' - albeit one of a sexual nature. The applicant's attention was drawn to clause 7.9 of the Employee Handbook. It states as follows:

Use of social media websites should be limited to work purposes. Social media websites are sites based on user participation and user-generated content. These include social networking sites such as LinkedIn, Facebook, MySpace and Twitter.

Misuse of these sites will not be tolerated. Misusage [sic] includes, but is not limited to:

● Using these sites for personal use during work hours (accessing these sites via mobile phone will also not be tolerated during work hours);

● Posting confidential or proprietary Company information online, making disparaging or harassing comments about co-workers, managers, customers or the Company online; and

● Blogging about problems at work or posting inappropriate photographs online during or after work hours.

We also recommend that you remain aware of your personal reputation and safety online at all times.

Failure to comply with this policy may result in disciplinary action being taken against you, up to and including termination of employment.'

[18] The applicant agreed that he knew from the Employee Handbook that inappropriate Facebook posts could result in his termination. He also agreed that the Employee Handbook set out that sexual harassment could include suggestive comments and jokes. However, the applicant noted that Mr Hoye was not an employee at the time that he made the Facebook post about him.

[19] Mr Carpenter provided a written statement, but was not required for cross examination. He said that the business of the respondent involved the collection of consumer debt that had been 'written off' by the original lender. The business is largely conducted by telephone. The respondent has approximately 600 staff, most of whom are Customer Relationship Managers.

[20] Mr Carpenter explained that CAP was one of a number of third party organisations which assist 'customers' of the respondent with their debt obligations by way of working through their debt obligations and negotiating with the respondent. He said the applicant regularly communicated with similar organisations in his capacity as a Customer Relationship Manager. He had been trained in interacting appropriately with customers, third parties and 'Not For Profit' organisations. These matters were also addressed in annual refresher training and in regular emails to employees.

[21] Mr Carpenter confirmed that the records of the Company disclosed that the Employee Handbook and the Code of Conduct were on the Company's intranet and were available to employees at any time. He noted that the applicant had signed an acknowledgment that he had received and read the Code of Conduct on 28 April 2010. He had also completed the 'Working Together' module on 2 August 2012 and the 'Respectful Engagement' training on 5 December 2011.

[22] Mr Carpenter deposed that Ms Monica Devoud, who managed the respondent's Complaints Department, had contacted him on 28 June 2013 concerning the applicant's Facebook activity. Later that day, he and Mr Kriston Wright met with the applicant at 4:30pm. The applicant had a support person with him, Royan Keane. At the beginning of this meeting, the applicant had agreed that he had been issued with the Employee Code of Conduct, the Employee Handbook and that he had completed the 'Working Together' module and 'Respectful Engagement' training.

[23] Mr Carpenter told the applicant that he had read the posts that he had made on the CAP Facebook page (see para [10]). The applicant accepted that he had made these posts, but added a qualification that he was on annual leave at the time. The applicant conceded that he could see how his posts would have been viewed as inappropriate and that they would not be in accordance with the rules for dealing with Financial Counsellors or the 'Respectful Engagement' practices. Nevertheless, he emphasised that they were his personal comments.

[24] Mr Carpenter stated that when it was put to the applicant that his Facebook profile identified him as an employee of the respondent, the applicant had said that he did not have the respondent listed as his employer. However, he acknowledged that the comment made in relation to Mr Hoye would have identified him as an employee of the respondent. The applicant had also agreed that he had other employees of the respondent as 'friends' on Facebook. He had accepted that his behaviour was contrary to protecting the Company's reputation.

[25] Mr Carpenter agreed that the applicant had asked to see the correspondence between CAP and the respondent. He told him that he did not believe that this would be appropriate. In any event, the key concerns in the correspondence had been explained to him.

[26] Mr Carpenter said that he then drew the applicant's attention to the post he had made on his own profile page on 21 June 2013 mentioning Mr Hoye (see para [11]). He accepted that Mr Hoye had commenced employment with the respondent on 1 July 2013. However, the applicant had agreed that this post did not comply with the Code of Conduct or with the respondent's policies and procedures in light of the fact that it was in a public forum. However, the applicant had said that it was just a joke, although he could see that it could have been damaging to the Company's brand.

[27] The applicant had explained that it was not his intention to breach the Code of Conduct and the postings were made in his own free time. He was unsure as to how the security settings on his Facebook account were set. He had not known that people who were not his Facebook friends, could still see these posts. The applicant had said he was disappointed that CAP had engaged in efforts to determine his identity. On reflection, he had accepted that his actions reflected poor judgment, but there had been no intention on his part to damage the Company. He accepted that his behaviour had been unacceptable.

[28] Mr Carpenter gave evidence that after a short break, during which the applicant's responses were reviewed by himself, Ms Sarah Comarmond, HR Business Partner and Mr Matthew Stokes, Head of Collections, he and Mr Wright met with the applicant again. It was explained to him that his behaviour did not comply with the Code of Conduct and that his actions had damaged the brand and reputation of the Company. The applicant was asked if he had anything further to say. He merely reiterated that the posts were made in his own time and that it was 'unfair' that CAP had read his posts in order to discover the fact that he worked for the respondent. Mr Carpenter told him that he had failed to perform his duties diligently, had disregarded Company policy and procedures and that the Company had lost trust and confidence in him. As a result, a decision had been made to terminate the applicant's employment for serious misconduct.

[29] Mr Carpenter emphasised that he had taken into account a number of factors in coming to this conclusion. These included the fact that the applicant had been trained in the respondent's policies and procedures, the written warning issued to him in July 2010, the applicant's failure to appreciate the seriousness of his actions and the likelihood of him engaging in similar conduct in the future.

[30] Mr Wright also provided a written statement and was not required for cross examination. He said that at 3:11pm on 28 June 2013, he sent an email to the applicant asking him to attend a meeting and offering him the opportunity to bring a support person. The meeting took place at approximately 4:30pm and the applicant brought Mr Royan Keane as a support person.

[31] Mr Wright did not speak during the meeting. However, he recalled that the applicant had agreed with Mr Carpenter that he had completed the 'Working Together' module, had been issued with a copy of the Code of Conduct and had undertaken the 'Respectful Engagement' training. Mr Wright said that Mr Carpenter outlined the posts that the applicant had made on CAP's Facebook page and asked him if he thought that these were appropriate for an employee of the Company to have made. The applicant had replied that the posts were made in his own time and that he was within his rights to make such comments. For him, it was an issue of free speech. He took issue with the ethics and values of CAP.

[32] Mr Carpenter had explained to the applicant that compliance with the Code of Conduct was a condition of employment and that breaches of the Code could lead to disciplinary action, up to and including dismissal. The applicant had replied that he had thought that his Facebook profile was private. He could not keep up with the changes that were made to privacy settings. Mr Carpenter raised the Facebook post that mentioned Mr Hoye (see para [11]). He had asked the applicant if he thought that this post complied with the Code of Conduct. The applicant admitted that it did not. However, he claimed the post was meant to be humorous. He had accepted that it did not comply with the requirement in the Employee Handbook that employees refrain from posting disparaging or harassing comments about other employees. He accepted that it could damage the Company's brand. However, the applicant would not agree that he had done anything wrong. He believed the comments in relation to Mr Hoye were private.

[33] Mr Wright said that Mr Carpenter had then advised the applicant that the Company was considering terminating his employment for reasons of serious misconduct. They would be taking a recess to consider his responses. After approximately half an hour, the meeting reconvened. Mr Carpenter advised the applicant that his behaviour was contrary to the Code of Conduct and had caused damage to the Company's brand and reputation. Mr Carpenter asked the applicant if he had anything further to say and he responded that he had not intended to cause harm with his comments. Mr Carpenter then stated that the Company saw no alternative but to terminate the applicant's employment.

[34] Mr Wright recalled that at some point during the meeting, the applicant had asked if the correspondence between the respondent and CAP could be shown to him. Mr Carpenter had replied that this was a private conversation between Mr Thomas Beregi and CAP, but he would see if he could get him a copy. The applicant had responded that he believed that CAP examining his Facebook profile, was a breach of his privacy.

[35] The applicant did not provide further written submissions to the five point statement noted above (see para [7]). However, in oral submissions, he put that he had felt that he had been unable to appropriately respond to the allegations of the respondent. The meeting on 28 June 2013 had been deliberately timed to take place at 4:30pm when other employees had already gone home. It was obvious to him that a decision to terminate his employment had already been made.

[36] The applicant submitted that CAP would have only been capable of assuming that he was an employee of the Company from his Facebook profile. The Company had confirmed this and had therefore released his personal details, without his permission. He asserted that the Company did not have the right to disclose to CAP that he was its employee. He accepted that it was likely that CAP knew that he was an employee of the Company, because he had called them many times.

[37] The applicant argued that as an individual he had a right, like others, to have a Facebook account and to express his opinion on the internet in his own time, as long as it did not reflect poorly on the Company. He said that he had understood Company policies in relation to social media and had ensured that he had not listed the Company as his employer on his Facebook profile; rather he had listed a fictional employer. He complained that he still had not viewed the correspondence between CAP and the Company. He felt that he had been terminated as 'somewhat of a sacrificial determination' and submitted that a warning would have been more appropriate.

[38] The applicant emphasised that the warning issued to him in 2010 did not involve social media, but rather it involved a private website, run as an anti-abortion page. He understood that he had been warned for wasting time and using Company resources for non work related activity.

[39] Finally, the applicant said that he was not currently working and was in receipt of Centrelink payments. He had recently submitted applications to enrol at various universities. Nevertheless, he sought reinstatement as a remedy for his unfair dismissal.

[40] In written submissions, Mr Motro, Solicitor (having been granted permission to appear) submitted that the dismissal of the applicant had not been 'harsh, unjust or unreasonable' within the meaning of the Act.

[41] Mr Motro said that there was a valid reason for the termination of the applicant's employment (s 387(a)) in that he had been terminated for reasons of serious misconduct. He referred to the meaning of serious misconduct in r 1.07 of the Fair Work Regulations 2009 (the 'Regulations'), emphasising the non-exclusive definitions of 'wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment' and 'conduct that causes serious and imminent risk to ... the reputation, viability or profitability of the employer's business'.

[42] Mr Motro submitted that the respondent had considered the posts made on the CAP Facebook page as serious given that:

● these comments were highly critical of CAP. The applicant intended to ridicule CAP due to his own personal views of that organisation;

● the applicant's work involved dealing with CAP. He had been trained in relation to dealing with 'Not For Profit' organisations, like CAP;

● other employees of the respondent, who were Facebook friends of the applicant, could see the comments that he had left on the CAP Facebook page; and

● the post the applicant had made on his own unsecured Facebook page in relation to Mr Hoye had identified him as an employee of the respondent.

[43] Mr Motro noted that the applicant maintained that he was entitled to express his opinion outside of work hours. Given this insistence, it was reasonable to assume that if he were to be reinstated, there would be a repeat of his behaviour.

[44] Mr Motro submitted that the applicant's post on his own Facebook profile in relation to Mr Hoye was serious in that it referred to 'rape' and 'sexual harassment' of a new employee. The Employee Handbook expressly prohibits sexual harassment in the workplace, which includes 'suggestive comments or jokes'. The Employee Handbook also deals with social media policy and sets out that 'making disparaging or harassing comments about co-workers, managers, customers or the Company online' is prohibited. The post also identified the applicant as an employee of the respondent. The applicant's behaviour constituted a breach of clause 15.2 of his contract of employment. The fact that the relevant Facebook posts were made out of working hours, on his own personal computer, did not mean that they could not be a valid reason for dismissal; See: Rose v Telstra Corporation Limited 1444/98 N Print Q9292 [1998] AIRC 1592 ('Rose v Telstra') and O'Keefe v Williams Muir's Pty Limited t/as Troy Williams The Good Guys [2011] FWA 5311 ('O'Keefe v Williams Muirs').

[45] Mr Motro noted that the applicant had been notified of the reason for his dismissal, being serious misconduct, in the meeting of 28 June 2013 and the letter of termination summarised those reasons (s 387(b)). The applicant had been given an opportunity to respond to the allegations in that meeting, at which the relevant Facebook posts were read out to him (s 387(c)). The applicant had responded that the relevant posts had been made in his own time and were meant to be humorous. The respondent had specifically advised the applicant in the email directing him to the meeting, that he could have a support person present. Mr Keane attended the meeting in this capacity (s 387(d)).

[46] Mr Motro added that the applicant had been dismissed for serious misconduct and that the respondent was not required to have previously warned the applicant in relation to his performance (s 387(e)). However, he noted that the applicant had previously been issued a warning in relation to posting inappropriate comments on a third party's website (see para [16]).

[47] Mr Motro submitted that the respondent had dedicated Human Resources staff (s 387(g)), but the Commission would consider this as having a neutral effect on the question of whether the applicant had been unfairly dismissed.

[48] Mr Motro said that the applicant had continuously failed to respect the respondent's policies and procedures. He had previously received a warning for similar conduct. He had demonstrated no remorse or contrition. He did not appreciate that his activity on Facebook would allow other persons to identify him as related to the respondent. The mere fact that the applicant had listed himself as being employed as a 'Dinosaur Wrangler' at 'Jurassic Park' did not change this. The applicant now conceded that third parties could view his Facebook profile.

[49] Mr Motro noted that the applicant had denied that he had received training in relation to conduct on social networking sites. This was untrue. He had conceded that the policy of the Company referred to 'representing the company and its best interests. My comments naturally do not fall into this category.' This assertion should not be taken seriously. Although the applicant claimed the comments in relation to Mr Hoye were meant to be a joke, they were objectively offensive and contrary to the respondent's policies and procedures. His assertion that the comments were not meant to be associated with the respondent, was difficult to maintain in light of the fact that they were expressed as being made 'On behalf of all the staff at The Credit Corp Group'.

[50] Mr Motro said that the applicant had not submitted that he lacked the ability to control his privacy settings on his Facebook account or that he not have the ability to understand his privacy settings; See Linfox Australia Pty Ltd v Glen Stutsel [2012] FWAFB 7097 ('Linfox v Stutsel'). Given the previous warning issued to the applicant, it was reasonable to assume that he had no regard to his privacy settings at all.

[51] Mr Motro submitted that should the Commission find that the applicant had been unfairly dismissed, reinstatement would not be an appropriate remedy, due to the comments made by the applicant, the embarrassment suffered by the business and the applicant's lack of insight as to his conduct. As the applicant's conduct was serious, a reduction due to that misconduct should be applied to any compensatory remedy awarded by the Commission.

[52] In oral submissions, Mr Motro submitted that there was no dispute that it was the applicant's Facebook activity which had resulted in his dismissal. The evidence tendered by the respondent had been largely uncontested. The applicant had been trained in the prohibition on sexual harassment and in relation to dealing with 'Not For Profit' Financial Counsellors and using social media. He would have been aware that inappropriate comments made on social media could be grounds for termination.

[53] Mr Motro claimed that the comments for which the applicant had previously been warned were not on a private page, as maintained by the applicant. They were on a public website. The comments made by the applicant on the CAP Facebook page were highly critical and inappropriate given his professional dealings with that group. Further posts on the applicant's own Facebook profile identified him as an employee of the respondent. The applicant's comments in relation to Mr Hoye were jokes of a sexual nature and prohibited under the respondent's policies. The fact that he wanted to joke about sexual harassment was an issue of ongoing concern.

[54] Mr Motro submitted that the applicant had full control over his Facebook account, its privacy settings and the content posted from it. The applicant had not been able to explain why his profile was not private and had acknowledged that other employees of the respondent would have had access to his profile anyway.

[55] Mr Motro distinguished the circumstances here to those in Linfox v Stutsel as follows:

● the applicant had set up his own Facebook account and had not relied on others to do it for him;

● the applicant had expressed his own opinion on his own page, and also on a third party's Facebook page. He was solely responsible for the relevant comments;

● the applicant's period of employment was of a shorter duration;

● the applicant had previously received a Written Warning in relation to similar conduct; and

● the applicant had identified himself as an employee of the respondent.

[56] Mr Motro said that the applicant had not explained how he had attempted to mitigate any loss in relation to his termination of employment. The application should be dismissed or, alternatively, no compensatory order should be made.

[57] I return to the relevant statutory provisions governing this matter. S 385(b) deals with a dismissal that is 'harsh, unjust or unreasonable'. These words have become the cornerstone of the industrial jurisprudence in respect to unfair dismissals. Each of the words has its own discrete meaning, as was said by the High Court in Byrne & Frew v Australian Airlines Ltd [1995] HCA 24 ('Byrne'), where McHugh and Gummow JJ observed:

'It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted'.

[58] The meaning of 'valid reason' in s 387(a) is drawn from the judgment of Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 ('Selvachandran'). Although decided under a different statutory scheme, this meaning has been applied by members of the Commission and its predecessors for many years:

'In its context in s 170DE(1), the adjective ''valid'' should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ''be applied in a practical, commonsense way to ensure that'' the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of s 170DC.

The requirements of s 170DE(1) should not impose a severe barrier to the right of an employer to dismiss an employee. Nevertheless, in cases similar to the one before the Court, the application of s 170DE(1) should always be considered and decided before consideration is given to the additional limitations on the right of an employer to terminate the employment of an employee imposed by ss 170DE(2) and 170DC. The purpose of these two provisions is to confer a greater protection on employees from termination of employment. In this regard the provisions are not very different from the consequences flowing from an award provision similar to that considered in Byrne v Australian Airlines Ltd [1994] FCA 888; (1995) 47 FCR 300; 52 IR 10 and discussed in Johns. There procedural fairness was held to have been imported by implication as well as the substantive protection conferred by the award. The statutory provisions now apply, by reason of the Act, with minor exceptions, to all employees.

The construction and application of ss 170DC and 170DE(2) were considered by Wilcox CJ in Gibson. His Honour discussed s 170DC under the heading ''Procedural fairness''. With respect, I agree with his opinion on this matter. I expressed similar views in Johns. But with respect, for reasons already expressed, the question of procedural fairness arises only after a finding has been made that the employer has established a valid reason or reasons under s 170DE(1).

His Honour the Chief Justice discussed s 170DE(2) under the heading ''Substantive fairness''. With respect, for reasons already expressed, the question of substantive fairness arises only after a finding has been made that the employee has established a valid reason or reasons under s 170DE(1). Under this heading, his Honour discussed the question of the construction and application of s 170DE(2) and in that discussion expressed the opinion:

''In this situation, it seems to me that Mr Ehsman, and anyone else who was involved in the decision to terminate Mr Gibson's employment, was entitled to reason that, if Mr Gibson was not prepared to explain any difficulty he had in working on a Saturday, in the circumstances it was better to dispense with his services. That decision was based on a valid reason based on the operational requirements of the respondent's business. The limitation imposed by subs (1) of s 170DE was satisfied. And, having regard to the size and nature of the respondent's business, it seems to me the decision was not harsh, unjust or unreasonable.''

Implicit in this discussion is the view that the adjective ''valid'' when used in s 170DE(1) is to be given a meaning similar to the meaning I would give to it as set out earlier in these reasons. In coming to his conclusion on this aspect, his Honour had regard to the nature of the employer's business and the need for the employer to provide services to its customers. A refusal by the employee to work the overtime directed, without saying why, was relevant both to the issue of a valid reason and to substantive fairness under both the subsections of s 170DE. I do not necessarily disagree with this approach but normally the issue of whether a reason for termination is valid or not should be considered primarily from the employer's perspective while the substantive fairness issue should be considered primarily from the employee's perspective even though the perspective of the employer may be of importance also. The differing onus of proof provisions support this approach.'

[59] Even if I was to find that there was a valid reason for the applicant's dismissal, that does not necessarily bear upon whether the dismissal was 'harsh, unreasonable or unjust'. Other factors may come into play which substantiate the later finding. So much so was expressly spelt out recently by the Full Bench of the Commission in B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191, where the majority (Lawler VP and Cribb C) said at para [41]:

'[41] Nevertheless, it remains a bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be "harsh, unjust or unreasonable" notwithstanding the existence of a "valid reason" for the dismissal": Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; J Boag & Son Brewing Pty Ltd v John Button ; Windsor Smith v Liu [1998] Print Q3462; Caspanello v Telstra Corporation Limited ; King v Freshmore (Vic) Pty Ltd [2000] Print S4213; Dahlstrom v Wagstaff Cranbourne Pty Ltd [2000] Print T1001; Erskine v Chalmers Industries Pty Ltd [2001] citing Allied Express Transport Pty Ltd (1998) 81 IR 410 at 413; Qantas Airways Limited v Cornwall (1998) 82 IR 102 at 109; ALH Group Pty Ltd T/A the Royal Exchange Hotel v Mulhall [2002] . That principle reflects the approach of the High Court in Victoria v Commonwealth and is consequence of the reality that in any given case there may be "relevant matters" that do not bear upon whether there was a "valid reason" for the dismissal but do bear upon whether the dismissal was "harsh, unjust or unreasonable".'

[60] Subsections (b) - (e) of s 387 of the Act can be broadly characterised as issues relevant to whether a dismissed employee was afforded procedural fairness. Alternatively, the term 'natural justice' also springs to mind. It is trite to observe that, even if there was a valid reason for an employee's dismissal, the dismissal may still be found to be unfair, if the employee was not afforded procedural fairness. This has been a long held industrial principle adopted and applied by this Commission, its predecessors, other Courts, industrial tribunals and the High Court. In the High Court case of Byrne, supra above, their Honours McHugh and Gummow JJ said at p 465:

'The distinction between procedure and substance is elusive. This is so even in those fields of private international law, the statute law dealing with limitations of actions and the effect of repeal upon accrued rights, and the Statute of Frauds, where it has an entrenched operation (217). In our view, it is unhelpful and contrary to the tenor of the Award to introduce it into cl 11(a).

That is not to say that the steps taken, or not taken, before termination may not in a given case be relevant to consideration of whether the state of affairs that was produced was harsh, unjust or unreasonable. Thus, it has been said that a decision which is the product of unfair procedures may be arbitrary, irrational or unreasonable (168). But the question under cl 11(a) is whether, in all the circumstances, the termination of employment disobeyed the injunction that it not be harsh, unjust or unreasonable. That is not answered by imposing a disjunction between procedure and substance. It is important that matters not be decided simply by looking to the first issue before there is seen to be any need to enter upon the second.'

'Procedures adopted in carrying out the termination might properly be taken into account in determining whether the termination thus produced was harsh, unjust or unreasonable.'

[61] To highlight the importance of procedural fairness, I cite two further authorities on the subject in an unfair dismissal case. In Crozier v Palazzo Corporation Pty Limited t/as Noble Storage and Transport (2000) 98 IR 137 ('Crozier v Palazzo'), a Full Bench of the AIRC said at para [73]:

'As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment.'

[62] In Wadey v YMCA Canberra [1996] IRCA 568, Moore J made clear that an employer cannot merely pay 'lip service' to giving an employee an opportunity to respond to allegations concerning the employee's conduct. His Honour said:

'In my opinion the obligation imposed on an employer by that section has, for present purposes, two relevant aspects. The first is that the employee must be made aware of allegations concerning the employee's conduct so as to be able to respond to them. The second is that the employee must be given an opportunity to defend himself or herself. The second aspect, the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.'

[63] That said, procedural fairness steps should be applied in a commonsense and practical way. In Gibson v Bosmac Pty Ltd (1995) 60 IR 1 ('Gibson'), Wilcox CJ said at 7:

'Ordinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particular formality. It is intended to be applied in a practical, commonsense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section.'

[64] As this is a matter concerning serious misconduct, Mr Motro correctly submitted that it was relevant to refer to the meaning of this expression, as defined in Regulation 1.07 of the Fair Work Regulations 2009:

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(ii) the reputation, viability or profitability of the employer's business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee's employment, engaging in:

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment.'

Presumably, the respondent relies on both sub-clause 2(a) and (b)(ii) above.

[65] Superintending all of the statutory and regulatory requirements in the Commission's unfair dismissal jurisdiction, is the well known expression of 'a fair go all round', which is expressly referred to in s 381(2) of the Act as follows:

'(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned.'

[66] Finally, I note that the applicant was unrepresented and his documentary evidence was short on detail. Nevertheless, I am satisfied that he informed the Commission, during the proceeding, of all the matters he wished me to consider in light of his claim that his dismissal was unfair. He was articulate and self-confident and made appropriate admissions. He had clearly thought about what he could advance to best defend his undisputed conduct. I will have more to say about these defences shortly. That said, I approached the applicant's self-representation conscious of the Commission's obligations in respect to advising and counselling self-represented litigants; See: Davidson v Aboriginal and Islander Care Agency, (Unreported, AIRC, 12 May 1998) Dec 534/98 N Print Q0784.

[67] It was inevitable with the seismic shift to the phenomenon of social media as a means of widespread instantaneous communication, that it would lead to new issues in the workplace. These include the extent of the use of social media while at work, the content of such communications and whether they be work or non-work related. Employers have had to respond to the new phenomenon with appropriate policies and codes of conduct - just as they had to respond to employees using work provided computers to receive, store or distribute inappropriate or non-work-related material.

[68] There is no doubt that in this case, the respondent has a Code of Conduct dealing with the applicant's actions. Moreover, the applicant was aware of, and acknowledged the Code and participated, on two occasions, in training on appropriate behaviour in the workplace. In this respect, these circumstances are not unlike those present in O'Keefe v Williams Muirs, where Swan DP said at paras [42]-[44]:

'[42] Even in the absence of the respondent's Handbook warning employees of the respondent's views on matters such as this, common sense would dictate that one could not write and therefore publish insulting and threatening comments about another employee in the manner in which this occurred.

[43] The fact that the comments were made on the applicant's home computer, out of work hours, does not make any difference. The comments were read by work colleagues and it was not long before Ms Taylor was advised of what had occurred. The respondent has rightfully submitted, in my view, that the separation between home and work is now less pronounced than it once used to be.

[44] I have accepted that the applicant's conduct was repudiatory conduct which amounted to serious misconduct.'

[69] Even if the respondent had no policies or a Code of Conduct directly addressing the applicant's actions, it would be of no consequence. One hardly needs written policies or codes of conduct to understand and appreciate that, firstly, the kind of sexual comments made about the new employee were grossly offensive and disgusting and were more than likely to cause hurt and humiliation. Secondly, there can be no doubt that the comments made by the applicant about CAP were likely to adversely impact on the respondent's relationship with that organisation and damage the respondent's wider reputation.

[70] I hasten to add, the applicant is perfectly entitled to hold views about any organisation and to express such views in the public domain; but he is not entitled to do so in a manner which injures his employer's business relationship with that organisation. I note that the applicant himself had made 17 calls to CAP between May and June 2013.

[71] In addition to claiming (incorrectly) that he had never been warned about private comments on social media in the past, the applicant also raised in his defence a number of gratuitous, self-serving excuses, that

1. he had 'masked' his identity and he had never consented to the respondent releasing or confirming his personal details to third parties (CAP);

4. he had made the comments in his own time outside of work hours;

5. Mr Hoye was not an employee at the time he posted the comment about him;

6. the earlier warning was about use of an internet site during work hours, not comments made outside of work;

7. the meeting with the Company was deliberately timed for 4:30pm when all the other employees had left work.

[72] In my opinion, the applicant has a very warped sense of rationalising his conduct. I will respond to each of these excuses. It is ridiculous to criticise the respondent for not obtaining his consent to confirm his personal details with CAP. His consent, or otherwise, was irrelevant. The respondent was perfectly entitled to make its own independent inquiries without obtaining the applicant's consent. In any event, I accept that CAP was able to establish his identity and who he worked for, without even asking the respondent.

[73] Secondly, I have trouble accepting that the applicant believed his Facebook page was 'private' and he did not understand how Facebook worked. For a young person who seemingly frequently used Facebook, it strikes me as highly implausible that he was incapable of adjusting his privacy settings. In any event, the maintenance of his privacy settings was his responsibility.

[74] Thirdly, I have already said the applicant is perfectly entitled to have his personal opinions, but he is not entitled to disclose them to the 'world at large' where to do so would reflect poorly on the Company and/or damage its reputation and viability. If he did not believe his comments about CAP were likely to have these effects, he displayed a poor sense of judgment, at the very least.

[75] Fourthly, the fact the applicant made both Facebook comments in his own time is of no consequence. It was not when the comments were made which is important, but the effect and impact of those comments on the respondent, its other employees and on the new employee. On this subject, I refer to what Ross VP (as he then was) said in Rose v Telstra. At page 9, His Honour observed:

'It is clear that in certain circumstances an employee's employment may be validly terminated because of out of hours conduct. But such circumstances are limited:

● the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and the employee; or

● the conduct is incompatible with the employee's duty as an employee;

In essence the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee.

Absent such considerations an employer has no right to control or regulate an employee out of hours conduct. In this regard I agree with the following observations of Finn J in McManus v Scott-Charlton:

"I am mindful of the caution that should be exercised when any extention is made to the supervision allowed an employer over the private activities of an employee. It needs to be carefully contained and fully justified."

A number of Australian cases have dealt with the question of whether an employee's out of work behaviour warranted termination. But in my view each of these cases falls within the circumstances identified above [footnotes omitted].'

[76] In my judgment, the applicant's conduct:

(a) seriously damaged the relationship between the employer and employee;

(c) potentially damaged the relationship between the employee and other employees; and

(d) was incompatible with the employee's duty as an employee.

[77] Fifthly, the applicant argued Mr Hoye was not yet an employee - as if this was somehow a defensible explanation. This is rubbish. The fact Mr Hoye was about to commence employment makes the applicant's comment even more reprehensible. Moreover, it conveyed lurid sexual suggestions, could be seen by everyone and was purportedly sent on behalf of all staff. It was so grossly offensive, that I am amazed the applicant would also argue it was meant to be a joke. Even though there was no corroborative evidence that Mr Hoye took it as a joke, that is not the point. It was likely to be deeply offensive to the person concerned and to those it was purportedly sent on behalf of.

[78] Sixthly, the applicant sought to make a distinction between an earlier warning for sending inappropriate material during work time and the recent incidents occurring outside of working time. This is a difference without a distinction, but in any event, the earlier warning letter makes plain that it was not limited to when the posting was made, but rather it was because of an inappropriate comment. The respondent was entitled to rely on this earlier warning, although given the seriousness of the more recent Facebook posts, it was not strictly necessary to do so.

[79] Seventhly, the applicant seemed to imply some ulterior motive of the respondent in meeting with him after the other employees had left for the day. Did he really want the embarrassment of his actions and his dismissal being made widely known to all the other employees? In my view, the respondent demonstrated a sensible sensitivity to the matter by not conducting the disciplinary process when other employees were in the workplace.

[80] In summary, the net effect of both of these incidents was, in my view, totally inappropriate and constituted serious misconduct. It was a valid reason for the applicant's dismissal. Viewed in the context of a previous warning for the same type of conduct, it could hardly be said the applicant was not well and truly on notice that similar conduct in the future would not be tolerated and may result in his dismissal.

[81] In addition, I am satisfied that the applicant's conduct was such as to fall within a finding of the repudiation of the employment contract by the applicant. In this respect, I rely on the following passage from Blyth Chemicals v Bushnell [1933] HCA 8; (1933) 49 CLR 66 at 81:

'Conduct which in respect of important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal (Boston Deep Sea Fishing and Ice Co. v. Ansell; English and Australian Copper Co. v. Johnson; Shepherd v. Felt and Textiles of Australia Ltd.) [footnotes omitted].'

[82] The concept of repudiation of the employment contract was put in a slightly different way in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285 at 287:

'It follows that the question must be - if summary dismissal is claimed to be justified - whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service.'

[83] In Concut Pty Ltd v Worrell [2000] HCA 64; (2000) 103 IR 160, McHugh J dealt with the ordinary relationship of the employer and employee at common law. His Honour said:

'3. The ordinary relationship of employer and employee at common law is one importing implied duties of loyalty, honesty, confidentiality and mutual trust. At common law:

"[c]onduct which in respect of important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal. ... [T]he conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises."

In the present case, the findings at trial went beyond mere uneasiness as to the future. They necessitated, or at least warranted, a conclusion that the "confidence" essential to the relationship of employer and employee had been destroyed. Instead of pursuing the interests of the company and its shareholders, the employee had pursued his own private interests. Not only was the employee in breach of his duty of fidelity and trust owed to the employer, he had remained in breach of that duty to the date of the trial. Until that time he had not accounted for the benefits wrongly appropriated by him. Indeed, he had denied any wrongful appropriation. The issue so tendered at the trial was determined against the employee. He was then subject to the employer's counter-claim for an order to make a refund. Such order was duly made at trial. It was not contested on appeal. Given his senior status in the company's service and the nature and extent of the misconduct disclosed in the evidence and accepted by the primary judge, it was open to him to find that the employee had undermined the confidence essential to the ongoing relationship of employment. Prima facie, this had afforded a legal justification for the employee's summary dismissal.

4. It is, however, only in exceptional circumstances that an ordinary employer is entitled at common law to dismiss an employee summarily. Whatever the position may be in relation to isolated acts of negligence, incompetence or unsuitability, it cannot be disputed (statute or express contractual provision aside) that acts of dishonesty or similar conduct destructive of the mutual trust between the employer and employee, once discovered, ordinarily fall within the class of conduct which, without more, authorises summary dismissal. Exceptions to this general position may exist for trivial breaches of the express or implied terms of the contract of employment. Other exceptions may arise where the breaches are ancient in time and where they may have been waived in the past, although known to the employer. Some breaches may be judged irrelevant to the duties of the particular employee and an ongoing relationship with the employer. But these exceptional cases apart, the establishment of important, relevant instances of misconduct, such as dishonesty on the part of an employee like Mr Wells, will normally afford legal justification for summary dismissal. Such a case will be classified as amounting to a relevant repudiation or renunciation by the employee of the employment contract, thus warranting summary dismissal.'

[84] Turning now to the specific provisions of s 387 of the Act, I mention firstly, that I earlier found that the dismissal of the applicant was for a valid reason (s 387(a)). The reason was neither fanciful, capricious or biased.

[85] The applicant was notified of the reason for his dismissal at the meeting on 28 June 2013 (s 387(b)) and given an opportunity to respond to the allegations against him ( s 387(c)). Although there might be some basis for criticising the fact the applicant was advised of the meeting only one hour beforehand and there was a relatively short time in which the respondent considered his explanations before dismissing him, it should not be lost sight of that the facts and circumstances, were uncontroversial. The applicant did not deny the allegations. Indeed, he had offered explanations for his conduct such as were discussed earlier. Importantly, he accepted that his conduct was not in accordance with the respondent's Code of Conduct and inconsistent and contrary to the training he had been given about such matters.

[86] In addition, the applicant made no protest at the time, that he did not understand the nature of the allegations against him or that he did not have a proper and reasonable opportunity to prepare his defence. Indeed, the applicant appeared to have a well rehearsed explanation for his conduct, which was ultimately unconvincing - that he was entitled to express his personal opinions in his own time. The applicant was offered and took up the opportunity to have a support person present at the meeting (s 387(d)). In any event, I am satisfied the process was conducted in a commonsense and practical way; See: Gibson, supra above.

[87] While the reason for dismissal was unrelated to unsatisfactory performance there was no doubt the applicant had been previously warned about similar behaviour. Moreover, the fact the applicant accepted he had received the Code of Conduct and undergone 'Working Together' and 'Respectful Engagement' training was warning enough that such conduct could likely result in dismissal. In any event, I struggle with the notion that warnings are necessary for behaviour, which commonsense would tell the ordinary person, was simply inappropriate and unacceptable. The applicant was no ordinary person. He was articulate and thoughtful, and argued his case with vigour and conviction. I simply cannot accept that he was a person who did not know what he was doing or the implications of what he was doing.

[88] I consider the size of the employer's enterprise (s 387(f)) and its dedicated human resources expertise (s 387(g) ensured the process accorded to the applicant was fair and reasonable, albeit with the caveats referred to in para [85].

[89] Other matters I consider relevant in this case (s 387(h) include firstly, the applicant's relatively medium term of service of three years. Secondly, there was no evidence the applicant had sought to mitigate his losses. He stated he was now seeking to enrol in University. Thirdly, and perhaps more importantly, the applicant offered no apology or regret for his behaviour. While he was prepared to admit breaches of the Code and the Company's policies, he was not, in any way remorseful for his conduct. On the contrary, he maintained he was entitled to do what he did and gave unconvincing explanations and excuses for his behaviour; See para [71]. I agree with Mr Motro that his failure to acknowledge the seriousness of his actions, whether deliberate or not, offers the respondent and the Commission little comfort that similar incidents would not occur in the future. This is a telling factor, which in my opinion, weighs against any finding of unfairness and/or reinstatement in this case.

[90] For all the aforementioned reasons, I conclude that the applicant's dismissal on 28 June 2013 was not 'harsh, unjust or unreasonable' within the meaning of s 387 of the Act. This finding is consistent with the principle of a 'fair go all round'. It follows that the application for an unfair dismissal remedy cannot succeed and this application must be dismissed. I order accordingly, with the order to be issued concurrently with the publication of this decision.

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