Can my Misdirected Text Justify my Dismissal?

Stephen Booth

Have you ever accidentally sent a text message to the wrong person? The consequences can be awkward, and may be disastrous if the content is inappropriate. 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 sent a text message 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.” It was intended for a plumbing contractor (her daughter’s boyfriend) who was about to do some work for the company but it was in fact sent it to the GM instead. 

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 company terminated her employment.

The Fair Work Commission interpreted the first text as saying that the General Manager was an idiot or fool, with the addition of “complete” emphasising how much of an idiot or fool he was, in Ms Nesbitt’s view.

The Fair Work Commission didn’t accept that the text should be seen as a joke: “It was far from a “light hearted insult,” it was a hurtful and unpleasant appraisal of the Chairman and Managing Director of her Employer, for whom she earned $95,000 per annum.” In fact, in a small business setting, the Fair Work Commission agreed with the employer that the text was serious misconduct, justifying dismissal without notice.

This case demonstrates that even if an employee does not (or does not intend to) direct a particular comment to someone, it can still justify dismissal if serious enough.

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 (though this depends on the work context and the frequency of conversational swearing), and said in a manner which is intended to denigrate, offend and undermine the authority of, the other person.

The niceties of whether an incident of abuse will justify termination with notice, or summary termination (without notice) require 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:

Stephen Booth, Principal
Phone: 02 9895 9222
Email:
sbooth@colemangreig.com.au

Lisa Qiu, Lawyer
Phone: 02 9895 9207
Email:
lqiu@colemangreig.com.au