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
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
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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