A Coles Supermarket employee summarily dismissed for breaching the Code of Conduct by sending inappropriate messages to his manager has had his unfair dismissal claim rejected.

On 5 September 2016, outside of work hours and on a personal phone, the employee sent a text message to his line manager. Text messages were exchanged regarding the employee taking personal leave including a message described as “a picture of a hand bandaged, where the thumb was replaced with a penis”. The manager responded and commented “Good Dick Pic”, prompting the employee to send a further message described as a picture of a penis caught in a bike chain. The manager responded “no more inappropriate texts”. The employee ceased sending further images, however, responded “get your shit together”, “I see this as my first warning…I want to see on Friday a roster so I don’t have to communicate with you in any other way”.

The employee was suspended on full pay, pending a disciplinary meeting which resulted in a decision to summarily dismiss the employee for conduct categorised as a serious breach of the Code of Conduct.

In his application for an unfair dismissal the employee argued: there was no valid reason for his dismissal; he was not notified of the reasons for his dismissal; and he was not given an adequate opportunity to respond. The employee also argued the dismissal was harsh, unjust and unreasonable because: he had not received prior warnings or counselling for this behaviour; he was denied procedural fairness during the disciplinary meetings as accommodation was not made for the employees learning difficulties; and the dismissal appeared to be “preordained”.

The employee considered the manager was a personal friend. The employee explained: he often had personal text message conversations with his manager; they were Facebook friends; had discussions over Xbox; and had welcomed receiving material on many occasions. The employee also claimed the team he worked in had a culture of sending or showing one another explicit material. The manager denied having personal relationships with staff members and described his colleagues are “acquaintances not friends”. The manager also sought to explain his text messages to employees as a way to “appease” and not cause conflict.

Having regard to the evidence, the Commission accepted there was a personal relationship between both parties, and accepted the manager was trying to distance himself from the relationship.

Coles submitted the explicit text messages were a serious breach of their Code of Conduct and Equal Opportunity Policy. Coles “considered [the communications] to be harassment due to its offensive and sexual nature”.  Whilst the Commission was not satisfied the messages met the definition of sexual harassment contained in Coles’ Equal Opportunity Policy it was satisfied the images were of an explicit nature. The Commission also considered the employee’s response when asked to stop was a breach of Coles Code of Conduct marking a failure “to treat others with dignity, courtesy and respect”. The Commission concluded “the totality of [the employee’s] misconduct constituted a valid reason for dismissal”.

The Commission noted the employee’s misconduct “was of such a nature that [the employee] ought to have accepted at least some responsibility for his actions. The fact [the employee] refused to acknowledge that this conduct could ever be inappropriate if sent from a private mobile phone, leads me to accept Coles’ submission that it cannot reasonably hold confidence in [the employee’s] ability to comply with its core values.”

The employee submitted he was not given an “adequate opportunity to respond” as he was only given three hours to provide a written response notwithstanding his request for extra time due to his learning difficulties.  The Commission agreed the employee should have been given more time, however, the extra time would not have influenced the decision to dismiss the employee or change the employee’s response.

Despite there being issues with the investigation, the process was not deemed to be “so procedurally unfair as to have caused any significant level of prejudice” to the employee. The Commission found the dismissal was not harsh, unjust or unreasonable and the application was dismissed.

Internal investigations are important for ensuring reports of bullying, harassment, discrimination and serious misconduct are handled correctly. Investigations in the Workplace will provide knowledge on what constitutes unlawful behaviours, the principles of an effective investigation and outline your role as an investigator.

Written by Laura Quinlan

[2017] FWC 6137