RELATED: Social media legal puzzle
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A Bendigo Health nurse sacked for tagging colleagues in a “sexually explicit” social media video has been awarded more than $2000 in compensation after an unfair dismissal case.
The viral Facebook video showed an obese woman in her underwear dropping her stomach on to the back of a man – also in his underwear – on all fours, while saying “how heavy is that” and “a little horsey”.
Michael Renton was dismissed by Bendigo Health in August 2016 after tagging two co-workers in the video, suggesting one co-worker was the female "slamming" the other the male in the video, Fair Work Commission documents reveal.
On the same day, August 4, 2016, Mr Renton also left five blobs of Sorbolene cream on a colleague’s desk, which the co-worker claimed suggested either he or someone else had masturbated at his desk.
In a FWC hearing in December, Mr Renton argued he tagged the colleague in the post to “generate humour” and did not mean to post anything sexually explicit.
Mr Renton, who said the sorbolene cream was an “annoying practical joke” with no sexual connotations, sought reinstatement at the hearing after his “harsh, unjust or unreasonable” termination.
Commissioner Michelle Bissett said Mr Renton had displayed “an appalling lack of judgement” in sharing and tagging two colleagues in the Facebook post and that Renton had a “long history of playing ‘pranks’ and practical jokes on one of his co-workers”.
“The joke was not shared by a few individuals but by a range of people, some of whom work at Bendigo Health and some of whom do not,” commissioner Bissett said.
However, in ruling in favour of Mr Renton, commissioner Bissett said: “I consider, on fine balance, that the decision to terminate Mr Renton’s employment was harsh in that it was disproportionate to the gravity of the misconduct. I have also taken into account the economic and personal consequences of the decision.”
Commissioner Bissett refused to reinstate Mr Renton and, at a compensation hearing last month, Bendigo Health submitted he should be entitled to no compensation, given his conduct.
According to FWC documents Mr Renton, who worked at Bendigo Health for 17 years, said he would have missed out on $1.5 million plus superannuation as he planned to work for the organisation for another 27 years, until retirement age.
In awarding Mr Renton $2,014.89 plus superannuation, commissioner Bissett said she reduced the compensation amount significantly because of Mr Renton’s conduct, which included contacting the co-workers involved when forbidden to.
“This amount does not include any amount for humiliation and distress and does not exceed the high-income threshold,” commissioner Bissett said.