This is a true story about an employee who accidentally sent a text to her employer in which she called him a “complete dick”. The employee was terminated by her boss for gross misconduct. The employee then applied to the Fair Work Commission for an unfair dismissal claim. The question for the Commission was whether the message was a “lighthearted insult” or did it constitute gross misconduct?
Ms. L (the employee) was employed as an administrative assistant for a small business. She had been employed by the company since November 2007. The business was small and only consisted of the employee and Mr. G (the employer).
The employee lived in New South Wales but would often spend extended periods of time away from the employer’s office in Perth. The employer relied upon the employee to carry out the day-to-day operations of the employer in Perth.
The accidental “text message”
On 12 January 2014, the employee had arranged for plumbing work to be carried out. This was to be completed by her daughter’s boyfriend. The employee sent a message intended for him, but accidentally sent it to her employer. The employee described her employer as a “complete dick.” The text message further read, “we know this already so please try your best not to tell him regardless of how you feel the need.”
Upon realising she had sent the text message to the incorrect recipient, she sent two follow up messages to her employer apologising and explaining it to be a joke and that it was not her true feelings.
She subsequently did not attend her employer’s office for several days and failed to deliver on a work task. This raised questions on whether she had abandoned her employment. The employee told the Commission she had been working from home which had become increasingly more common within her position.
Her employer said the text message was highly offensive, derogatory and a shock given her position as an employee and her long working relationship within the business. A meeting was organised between the employee, the employer and the board of directors. The employee did not attend. The board consequently dismissed the employee for her actions relating to the text message under a violation of “gross misconduct”.
The Fair Work Commissions’ determination
The Commission accepted that the employee had been working from home and had not abandoned her employment even though she had not been working to her normal capacity at home since the incident.
Despite filing an unfair dismissal claim with the Commission, the employers’ decision to terminate the employees’ employment was upheld. Given the size of the business being fairly small, the Commissioner determined that “trust and confidence” are far more acute when consideration is given to the closeness of the employment relationship.
The Commission rejected the employee’s argument that the text message be considered within the context of the intended recipient. The Commission further dismissed the employee’s argument that it was accidental and taken out of context because of the offensive nature and content of the text message. The content was offensive enough to be considered gross misconduct. The Commission accepted that the employer was entitled to dismiss the employee under the terms of the Small Business Fair Dismissal Code.
Recommendations for Employers
- Always have a Code of Conduct Policy in place that outlines the ramifications flowing from unacceptable behaviour, including what constitutes “gross misconduct.”
- Always take the time if an incident like this transpires to set up a meeting between the staff members involved to discuss the incident before taking action. See ClinLegal’s How-to-Guide on Workplace change – your obligations to consult with employees.
To access the Code of Conduct Policy or for further information or advice, contact us at [email protected] or visit www.clinlegal.com.au By Mitchell Carnes, Legal Practitioner at ClinLegal. Mitchell holds a Bachelor of Laws and Legal Practice and a Bachelor of Arts.