Employment and Migration Blog

Can a Misdirected Text = Dismissal?

Posted by Stephen Booth on 13 Jul 2015

A text message can so easily be sent to the wrong person…with potentially disastrous consequences. In the recent decision of Nesbitt v Dragon Mountain Gold, the Fair Work Commission upheld the dismissal of an employee who had accidentally sent a text message to her General Manager.

Ms Nesbitt lost her job after sending a text message intended for a plumbing contractor (her daughter’s boyfriend) to her General Manager, in which she referred to the General Manager as “a complete dick…we know this already so please try your best not to tell him that regardless of how you feel the need.”

Shortly afterwards, Ms Nesbitt sent the General Manager another text, saying in part “Rob I need to explain...that message came across so wrong. Rob…that is not how I feel. My sense of humour is to exaggerate…That was a joke within our family...It is so far out of context... Please forget it and just go on as normal. I am very very sorry. It is not how I feel.”

The Fair Work Commission didn’t accept that the text should be seen as a joke, interpreting the misdirected text as saying the General Manager was an idiot or a fool, and agreeing with the employer that the text was serious misconduct, justifying dismissal without notice.

There have been many other cases where an offensive or disrespectful comment comes in the form of swearing at someone in the workplace. Generally, for swearing to justify summary dismissal, it needs to be directed at someone and not merely conversational (depending on the work context and the frequency of conversational swearing), and said with the intention to denigrate, offend and undermine the authority of, the other person.

Whether an incident of abuse will justify termination with or without notice requires consideration of the whole context – size of the business, prevailing culture, background between the players, what exactly was said, who else heard it, length of the employee’s service, the employee’s record, and whether a first and final warning or other disciplinary step short of termination would be more appropriate.

To find out more about what is acceptable workplace conduct and what conduct will or will not justify dismissal, please contact our Employment Law team: