On the sacking of Jason Dowling

Jason Dowling has been sacked. Not for behaving badly at work, but for behaving badly in his own spare time. Jason posted some offensive comments on Facebook, was dobbed in to his boss by a stranger who happened to stumble upon his page and then given his marching orders. What’s the world coming to?

It’s not the first time bad behaviour outside of work hours has resulted in dismissal. As early as the late nineties, a Telstra employee was sacked for getting into a fight while at after-work drinks. The Commission member found that ‘employers do not have an unfettered right to sit in judgement on the out of work behaviour of their employees’. Vice-President Ross went on to say that ‘an employee’s behaviour outside of working hours will only have an impact on their employment to the extent that it can be said to breach an express or implied term of his or her contract of employment’. The VP must have thought that getting into a fight outside of hours wasn’t mentioned as a no-no in the employment contract.

And it’s not the first time someone has been sacked for saying naughty things on Facebook. In late 2010, the Australian Industrial Relations Commission found that ‘Posting comments about an employer on a website (Facebook) that can be seen by an uncontrollable number of people is no longer a private matter but a public comment’. But despite the stern words, the hairdresser was found to be unfairly dismissed because she didn’t identify her employer in her Facebook post.

Employment lawyer Dayan Goodsir Cullen talks about our bi-polar society in an article in volume 1/3 of the Workplace Review:

On the one hand, there is a culture where the personal has become public by way of reality television, iPhone cameras, Facebook, YouTube, Twitter and other online social networks. Old customs of behaviour, including restraint, modesty and a desire for privacy, have become quaintly old-fashioned….On the other hand, the workplace is forcibly inhibited. Any kind of workplace behaviour, ranging from the socially inept to the blatantly offensive and sexist, is regulated and potentially unlawful.

And there’s a reason for it, she says. Anti-discrimination legislation came out of that period between post-World War 2 and the 1970s, where harassment and discrimination were very real for workers. It wasn’t a reaction to Big Brother; it was an attempt ‘by society to curb types of behaviour that were considered improper in the modern era’.

Is the stranger Caroline, the 25-year-old who found the offensive comments and felt morally compelled to go to Mr Dowling’s employer, a dibber-dobber? Or is she trying to enforce the values and behaviours that we as a society determined long ago were most desirable?

In this case of Jason Dowling, doesn’t an employer get to protect the reputation of his or her company? If I was the person in charge of deciding between Thiess Pty Ltd and another company in offering the contract for the next big project, I might just wonder how serious Theiss was about their Workplace Diversity Policy (especially that bit about promoting a culture that provides workplaces that are free from discrimination, harassment and abuse …).

When the Sex Discrimination Act was introduced in 1983, Senator Ryan stated that ‘the practice of sexual harassment can be eliminated only when employers take positive steps to eliminate it from the workplace and make clear to staff that it cannot be tolerated’. Surely the same applies for all forms of discrimination.

So, it seems that Jason Dowling might still have his job if he hadn’t mentioned on his Facebook profile who he worked for.

The Facebook comments can be found on The Anti-Bogan’s ‘Wall of Shame’, a blog that ‘aims to document racism in Australia’. Mr Dowling’s name and photo have been removed ‘at request of racist/sexist douchebag’, but do a CTRL+F search on ‘Jason’ and you might be able to figure out which ones are his.

You’ve checked, right? Would you still want him on your books, damaging your reputation, if he was your employee?

Isy Burns

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  1. Thought provoking post.

    I think the problem with firing Dowling is that he’s being fired for expressing unpopular political views in his free time. I know it will make people angry to call his racism a political view, but this is what we’d call someone campaigning against racism in their free time. There was a time when someone might be fired for advocating communism or something like that in their free time. So I don’t think this is a good precedent or principle.

    With that said, I’m not surprised this happened on the Gold Coast. When I visited Surfer’s Paradise last year I was amazed at all the racist t-shirts, and people covered in flags and patriotic tattoos. And even Movie World (imo) had a car stunt show which had anti-Semitic stereotyping.

    I also don’t think this kind of story is very encouraging, because the problem in Australia isn’t these kinds of fringe Nazi lunatics, who have no appeal to most Australians, but to the more mainstream, plausibly deniable racism. You know the sort – I don’t hate Muslims, but Islam is x. I don’t hate Aboriginal people – but look at their crime rates.

    1. Michael, I think your point about whether these views could be considered political view and that therefore the right to them protected by legislation. It would be really interesting to see if the dismissal was upheld if it was tested in front of the Tribunal…

  2. Thanks for the post, Isy.

    Seems like the only people who can behave badly out of hours and get away with it are AFL footballers.

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