Facebook Six prison officers beat bid to sack them. Six prison officers known as the Facebook Six have won their case against the NSW Corrective Services Department, which tried to sack them over comments posted on the social networking site.
A Facebook group called "Suggestions to help Big RON save a few clams" criticised state government plans to privatise NSW prisons and suggested other ways that NSW Corrective Services Commissioner Ron Woodham could save money.
The department appointed former NSW police commissioner Ken Moroney to investigate whether there was misconduct.
The officers were sent a letter, based on Moroney's finding, indicating the department was considering sacking them for misconduct over comments posted on the site, which it described as "bullying" and "harassment".
The Public Service Association took the case to the Industrial Relations Commission, arguing the threat was an attempt to stifle dissent.
In a judgment handed down this week, Justice Frank Marks ruled that the appointment of Moroney by the department to investigate the Facebook Six - paying him a daily rate of $791.89 - was invalid.
He found that Moroney, who was no longer police commissioner, was not officially a state government employee when the investigation began and therefore his appointment was "ineffective".
"In these circumstances it would be both unjust and inappropriate for Corrections New South Wales to proceed to take any disciplinary actions against any of the officers concerned based on anything done by Mr Moroney pursuant to the invalid delegation," Justice Marks said.
Justice Marks ordered that the department could not dismiss or take any other disciplinary action against the prison officers based on any determination of misconduct made by Moroney.
But Justice Marks did not make a comment on whether the Facebook postings constituted misconduct, so the department might still be able to discipline the officers if it conducts a new investigation.
Corrective Services spokesman Bob Stapleton refused to comment on the case, saying the department was still digesting the judgment.
He did not know whether the department had a formal policy dictating employees' use of social networking sites such as Facebook.
Steven Penning, a partner with Turner Freeman who specialises in industrial law, said in a phone interview that on the basis of the information in the case it appeared that the department did not have a social networking policy in place.
"This is the perfect example of why it’s in everyone’s interests, employers and employees, to have clear and express guidelines and rules about what the policy is in relation to social networking," he said.
"If employers don’t do that then they will come unstuck if they try and sack people post the event when they’ve not told them anything in advance."
The contentious Facebook group was set up by the prison officers in October 2008 as a place to vent their anger over government plans to privatise two of the state's prisons - one at Parklea and another at Cessnock in the Hunter Valley.
Among the comments posted on the group, members suggested the department could save money by sacking senior officials who they claimed added little value. Other comments also revealed areas of wastage within Corrective Services.
Public Service Association senior industrial officer Stewart Little argued that what people do in their own time should not be subject to misconduct allegations.
He said talking on Facebook was "the same as people talking in the pub letting off steam".
In a statement released today, Public Service Association general secretary John Cahill said the department had abandoned fairness and proper processes in its haste to make an example of the officers. He appealed to the department to give up its "Facebook witch-hunt".
"While the IRC has overruled the department’s current disciplinary procedures, it has not addressed the legality of employers spying on their employees on Facebook and other social media sites," said Cahill.
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