Employment Law

By Simon Dewberry
Employment & Safety Litigation

In this issue

We look at negative social media comments about an employer that led to an unfair dismissal; a large damages award for a workplace injury and breaches of the Fair Work Act; and a case that helps clarify how the Fair Work Commission will practically apply the Better Off Overall Test following the Coles decision.

Social media comment results in unfair dismissal

In brief: Derogatory comments on social media can be a valid reason to terminate an employee's employment, but a fair process must still be followed to avoid an unfair dismissal ruling. Senior Associate Tristan Garcia and Lawyer Jo Seto report on a recent decision of the Fair Work Commission. 

How does it affect you?

  • Employees' social media commentary may give a valid reason for their dismissal if the comments have a relevant and sufficient connection to their employment.
  • Employees should be provided with an opportunity to respond to all materials relevant to the employer's decision to terminate their employment, including comments made on social media. 


Mr Remmert was employed as a maintenance fitter by Broken Hill Operations Pty Ltd (BHO). He was dismissed following an incident in which he made derogatory comments about a supervisor on Facebook. Outside of working hours, one of Mr Remmert's co-workers posted a photo on Facebook of a BHO employee wearing a cap with an exaggerated peak. This was a reference to a supervisor at BHO. In response to the photo, Mr Remmert commented, 'I've seen f***w**s with bigger peaks on their caps'. Mr Remmert was one of 12 BHO employees who liked the post and one of five employees who commented on the photo.

BHO conducted an investigation into the post, concluding that the comments made by Mr Remmert were intended to belittle and ridicule the supervisor. BHO decided to terminate Mr Remmert's employment after considering:

  • a summary of the investigation into the Facebook post;
  • a confidential report (the contents of which were not disclosed to Mr Remmert); and
  • the fact Mr Remmert had previously received a final warning in relation to bullying conduct.

Mr Remmert claimed his dismissal was unfair, arguing that the comments were not made in reference to the supervisor and had been posted outside work hours.


The Fair Work Commission (the Commission) concluded that BHO had a valid reason for the dismissal. The Commission was satisfied that there was a relevant and sufficient connection between Mr Remmert's out of hours comments on Facebook and his employment. This was because many of Mr Remmert's Facebook friends were also BHO employees and because the photo uploaded was of a BHO employee and was posted by a BHO employee. It was also relevant that Mr Remmert had previously received a final warning for similar bullying conduct.

However, the Commission went on to find that there was significant procedural unfairness in the decision-making process, which ultimately meant the dismissal was unfair. During the hearing, BHO's Senior Human Resources Officer described the confidential report as being relevant to the investigation. Given these comments, the Commission said that it was probable that this information, along with the earlier warning given to Mr Remmert, contributed to the ultimate decision to dismiss him. Since the report was never provided to Mr Remmert and he was never afforded an opportunity to respond to its contents, his dismissal was harsh and unreasonable.

The Commission awarded Mr Remmert compensation of $28,471, deciding that reinstatement was not appropriate in the circumstances, particularly since Mr Remmert had not expressed any contrition and had continued to deny the Facebook comments were directed at the supervisor.

Employee wins large damages award for workplace injury and subsequent Fair Work Act breaches

In brief: The Federal Court has awarded an employee over $1.2 million in damages for his employer's breaches of the Fair Work Act. This award came after the employee successfully sued the employer for over $600,000 in common law damages for a workplace injury. Senior Associate Tristan Garcia and Lawyer Jo Seto report.

How does it affect you?

  • An employee may be able to recover separate damages awards in relation to the same chain of events, provided that those awards have different purposes. For example, in this case the employee first successfully sued the employer for lost earning capacity resulting from a personal injury and then successfully sued the employer for lost wages and future income caused by breaches of the Fair Work Act 2009 (Cth).
  • Employers may be required to pay pecuniary penalties, in addition to compensation, in circumstances where they have contravened the Fair Work Act. 


Mr Haylett was employed as an equipment operator by Hail Creek Coal (HCC). Following a spinal injury sustained at work, Mr Haylett was re-trained as a drill rig operator and worked in this role for three years.

HCC later stood Mr Haylett down from performing his duties as a drill rig operator. The stand down came:

  • four days after he was awarded $637,000 in common law damages for his spinal injury; and
  • one day after he underwent a pre-arranged medical assessment, which concluded he was unfit to undertake his current position as an operator.

Mr Haylett successfully challenged the medical assessment, with the Queensland Supreme Court deciding it had no effect under mine safety legislation. At around the same time, HCC ceased paying Mr Haylett's wages on the basis that he had exhausted his personal and annual leave entitlements.

HCC then obtained a further medical assessment from the same doctor. The doctor initially concluded that Mr Haylett was fit to work, with some restrictions. After HCC intervened, the doctor changed his report to conclude Mr Haylett was not fit to work, due to those restrictions. Based on this second assessment, HCC maintained its earlier decision to stand Mr Haylett down and to cease paying his wages.

Mr Haylett challenged the second medical assessment and was again successful in obtaining an order that the assessment had no effect under mine safety legislation.

Notwithstanding that decision, HCC refused to reverse its decision to stand Mr Haylett down and to cease paying his wages. Mr Haylett then commenced proceedings in the Federal Court claiming that HCC had breached:

  • the general protections provisions in the Fair Work Act by standing him down because he had commenced proceedings for workers' compensation; and
  • the Hail Creek Agreement 2011, by ceasing to pay his wages.


The Federal Court decided that HCC had breached the general protections and the Hail Creek Agreement 2011. The court was not satisfied that HCC had proved that the workplace rights exercised by Mr Haylett (commencing workers' compensation proceedings) were not a substantial and operative reason for its decision to stand him down. Rather than being motivated by a concern to ensure compliance with the applicable mine safety legislation, the court concluded that HCC was motivated by a concern about potential increases to HCC's insurance premiums.

Consequently, the court awarded Mr Haylett $1,272,109 in damages for past and future loss of wages, plus interest. HCC was also ordered to pay a pecuniary penalty of $50,000 to the applicant, the CFMEU. The court rejected HCC's argument that the damages awarded to Mr Haylett were double dip compensation on the damages he received for his personal injury. The court emphasised that the two awards had different purposes. The personal injury award was for lost earning capacity resulting from the personal injury. The Fair Work Act award was for lost wages and future income caused by breaches of the Fair Work Act. The risk of double compensation was therefore low.

Crying wolf is not enough for agreement to fail BOOT

In brief: A recent Fair Work Commission decision to approve an enterprise agreement has cast further light on the approach some Commissioners take when applying the Better Off Overall Test when faced with union opposition. Associate Laura Miller reports.

How does it affect you?

  • Enterprise agreements must make employees better off overall compared to the relevant modern award. There has been a renewed focus on BOOT issues following the Coles decision.
  • Given employers must declare their agreement passes the BOOT when they apply to the Fair Work Commission (the Commission), this decision signals that the Commission will not refuse to approve an enterprise agreement in the absence of specific evidence that an employee or class of employees will not be better off.


Australian Rail Track Corporation (Rail Track) applied to the Commission for the approval of the Australian Rail Track Corporation New South Wales (NSW) Enterprise Agreement 2016 (the Agreement). The Agreement would cover 528 of Rail Track's employees in New South Wales, other than certain senior management employees. The application for approval came after a slim majority of employees voted in support of the Agreement (51.85 per cent) and after a period of protracted bargaining that involved numerous dispute resolution conferences in the Commission, protected industrial action and allegations of bad faith bargaining.

The RTBU, the CEPU, the ASU and APESMA (the Unions) opposed the approval of the Agreement on a number of grounds, the most significant being that Rail Track had provided insufficient information to satisfy the Commission that the agreement passed the BOOT. The other grounds on which the Unions opposed the application were the scope of the Agreement, as well as provisions regarding consultation and unpaid carer's leave.


After raising general concerns about the Unions' true motivations in opposing Rail Track's application, the Commission went on to approve the Agreement.

The Commission was satisfied (both on its own analysis and by the methodology used by Rail Track) that the Agreement passed the BOOT. In reaching that conclusion, the Commission noted that:

  • employers are not obliged to explain how the employees would be better off overall under the Agreement in making their application for approval. It is sufficient for employers to provide the information required by the Commission (eg Forms 16 and 17); and
  • the Unions had not provided specific evidence of any general or particular failure to satisfy the BOOT. Broad generalisations weren't enough to satisfy the Commission that the Agreement failed the test.

Referring to the terms of the Explanatory Memorandum to the Fair Work Act 2009 (Cth), the Commission stated that it would be an 'illogical and impossible nightmare' if the Commission's task in assessing the BOOT was to examine and analyse each employee's current or prospective roster or individual circumstances under the Agreement compared to the relevant award.

In relation to the concerns raised by the Unions regarding the scope of the Agreement, the Commission found that the Unions had over 15 months to raise their concerns about this issue, but failed to do so. The Commission emphasised that the approval process could not be used to obtain terms and conditions that could not be achieved during bargaining or to expand or limit the scope of the Agreement.