Employee Sacked for Offensive Text

A recent Fair Work Commission decision has reinforced the risks associated with making derogatory comments in the workplace and the importance of employees keeping any negative perceptions of other staff to themselves.

In Louise Nesbitt v Dragon Mountain Gold Limited (U2014/285), Commissioner Cloghan was satisfied Ms Nesbitt had not been unfairly dismissed within the meaning of s 385 of the Fair Work Act 2009 (FWA).

Ms Nesbitt, was employed as a bookkeeper and accidently forwarded a text message to her boss referring to him as a ‘complete d**k’. The message was intended for her daughter’s boyfriend who had been contracted to conduct plumbing work at her office.

Whilst Ms Nesbitt immediately apologised to her boss and tried to convince the Commissioner that it was her sense of humour to exaggerate and the comment was a ‘light hearted insult’, the Commissioner considered it was a hurtful and unpleasant appraisal of her employer, especially in light of their longstanding employment relationship.

He was satisfied that Ms Nesbitt’s employer believed that the conduct was serious enough to justify dismissal immediately.

Lessons to be learnt

Section 385 of the FWA sets out the requirements for an employee to prove that their dismissal has been unfair. The dismissal must be:

(a) harsh, unjust or unreasonable; and

(b) not consistent with the Small Business Fair Dismissal Code; and

(c) not a case of genuine redundancy.

It is important that employers consider these requirements prior to terminating any employees’ employment. If you need any assistance with such matters, please contact our employment team.

For employees, this is a also a timely reminder that people’s perceptions regarding offensive conduct differ, and it is essential to be mindful of this when conducting yourself within a workplace. It is also important to be mindful of any Code of Conduct in place in your workplace.

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