Mr Nirmal Singh v Aerocare Flight Support Pty Ltd [2016] FWC 6186. (U2015/12518). HUNT, C. 13 SEPTEMBER 2016.

Mr Singh commenced employment with Aerocare on 18 August 2014 in the role of Airline Service Agent. He was employed as a casual employee on a regular and systematic basis. Aerocare is a national aviation ground handling and services company. Its employees include baggage handlers, titled Airline Service Agents.

Mr Singh’s employment was terminated on 8 October 2015 by letter that he would not be offered any further shifts because he had breached Aerocare’s social media policies, and his social media comments had jeopardised Aerocare’s relationship with its client and its brand.

In short, Mr Singh publicly published his support for ISIS/ Hizb ut-Tahrir and its actions/activities and made radical statements against the Australian Government. His main defence being that his posts were designed to be that of “sarcasm,” stating that he never supported ISIS or any religious extremism and that his religion (Sikh) did not support religious extremism.

The respondent contended that within the security environment of commercial passenger aviation, the defence of “the post is actually sarcastic”, or “I was only joking” is not an acceptable explanation. It may be an offence under the Aviation Transport Security Regulations 2005 (the Regulations).

The Regulations relevantly provide:

“9.01 Threats regarding aviation security

(1) A person must not, while at a security controlled airport or on board an aircraft, engage in conduct that a reasonable person could interpret as a threat to commit an act of unlawful interference with aviation.

Penalty: 50 penalty units.

(2) An offence against subregulation (1) is an offence of strict liability.

Examples of conduct for subregulation (1):

Making jokes about bombs in baggage

Leaving articles of baggage unattended.”

The Commissioner:

  • The assessment of whether there was a valid reason for Mr Singh’s dismissal based on his conduct involves a characterisation of the nature and gravity of that conduct having regard to the SM Policy, and relevant consideration of required conduct in the high-risk security environment of an airport workplace.
  • The ISIS post caused Mr Singh’s fellow employees to be alarmed and concerned. Mr Rumac and Mr McCaughey did not suspect that Mr Singh had made the post; other than somebody else using Mr Singh’s Facebook profile, they knew that he had made the post as they had knowledge that it was his Facebook profile, despite the alias.
  • I do not accept Mr Singh’s contention made during the meeting of 8 October 2015, in his evidence and in submissions that because he made the ISIS post away from the airport, it is not related to his employment.
  • In circumstances where an employee’s alleged misconduct occurred outside of work it is necessary to identify the principles defining the extent to which the employer is entitled to regulate, and take disciplinary action in relation to, “out of hours” conduct. The usually applicable principles were stated in Rose v Telstra Corporation Limited to be as follows:

“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 employee; or
  • the conduct damages the employer’s interests; 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’s out of hours conduct.”

  • Accepted that the ISIS post did breach the SM Policy, and Mr Singh had been afforded relevant training in relation to the policy and required standards of employees in a high security-risk environment, in light of Mr Singh’s response, I do not find there was a valid reason for the dismissal.
  • I find that there was nothing that Mr Singh could have said that would have convinced Aerocare to make a decision other than to terminate his employment.
  • A more thorough investigation, including obtaining a written account from Mr Singh would have satisfied Aerocare that Mr Singh did not support ISIS. A reasonable conclusion would then be that the ISIS post was an incredibly stupid post to have been made.

Despite this, the Commissioner found:

“My finding, however, should not suggest that it is acceptable for employees in the relevant airport environment to post what appears to be support for a terrorist organisation and explain it away as sarcasm, comedy or satire. Mr Singh did a very stupid thing. I expect that even if the ISIS post had been made within the ‘Australia, The Last Castle’ secret Facebook group, he would have met with derision and likely reporting to authorities of his post.

“The ISIS post does not even have the look of sarcasm. It is not witty. It is not funny. It is a ridiculous post”.

“…I find that Mr Singh’s dismissal was harsh, unjust and unreasonable.

“…Mr Singh’s statement to Aerocare on 8 October 2015 is that he is a prolific poster, making 10-20 posts on social media per day.

“I have determined that Aerocare is to pay to Mr Singh the amount of $4,800 less tax as required by law. The amount of $4,800 represents eight weeks’ wages, less 40% for misconduct…”

Commentary

This decision may set a dangerous precedent and should be appealed. In my humble opinion, the logic leading to the findings are flawed and should be appealed. There may even be a valid reason for a ministerial review of this decision. The employer did everything right (right policy, right training), the applicant tried to hide behind the subterfuge of an alias and when caught out, his only demesne: “only joking”. The Commissioner had an opportunity to make an example of this serious misconduct and failed.

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

  • General HR and IR advisory service.
  • Fair Work Commission representation (eg unfair dismissals, adverse actions, etc.).
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  • Policies and procedures.
  • Discipline & Termination.
  • People Audits (are you at risk of prosecution?).
  • Enterprise Agreements, Contracts of Employment, Individual Flexibility Agreements.
  • On-site HR services.

Contact Greg on 0438 906 050 or mailto: greg@gregreiffelconsulting.com.au.