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
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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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