In May 2018 two complaints were lodged against the employee by their immediate supervisor relating to behaviour both in the workplace and on social media. The first complaint followed an exchange relating to the temperature of the office. The employee requested the heating be turned on and when the supervisor declined the employee remarked this was because she had “extra padding”. The second complaint related to a “Facebook” message sent out of hours from the employee to the supervisor. Earlier that day the employee had been sent home without pay due to a breach of workplace policy when she was caught using her mobile phone in the break room. In the message the employee commented on the fairness of being sent home and how the supervisor was a “stickler” for the rules which was costing her money. The supervisor found this message intimidating and threatening. In the past, the employee had been counselled for such behaviour, including receiving formal warnings.

The business investigated both claims and reviewed the governing workplace policies. In May 2018 a meeting was held to discuss the conduct and to hear the employee’s version of events. They were subsequently dismissed in a follow-up meeting at the beginning of June 2018.

The decision

In her unfair dismissal submission, the employee did not deny sending the Facebook message or making the comment about the supervisor’s physical appearance. However, she argued she was being targeted for “challenging the guidelines” and that being less “tactful” than others was not misconduct.

The Fair Work Commission (FWC) weighed the employee’s arguments against those of the business who were supported by their workplace policies. The Commission noted the employee’s history of inappropriate comments and her continued “lack of insight” into the inappropriateness of her comments. Likewise, she did not show any remorse for the impact of such comments, rather choosing to rationalise them. Following a close review of the businesses policies, the FWC upheld the reason for ending employment. Similarly, the business was found to have met the procedural requirements of termination including not unreasonably refusing a support person, notifying the employee of the reason for the termination and providing an opportunity to respond. Overall, the termination was not harsh, unjust or unreasonable and the application was dismissed.

Lessons/learnings

Businesses need clear workplace policies guiding the behaviour of their employees. The business, in this case, was able to rely on a clear policy that had been implemented consistently, with disciplinary behaviour enacted when breaches were evident. Business should aim to draft policies reflecting the business’s values and make these clear to all staff members.

How we can assist

Under current employment legislation, costly consequences await organisations found to be recruiting, managing or terminating staff incorrectly. Attend our Managing Termination, Redundancy and Unfair Dismissals to increase your knowledge of counselling and discipline processes, and how to best manage an unfair dismissal claim.

Written by Stephanie Beckett, Workplace Relations Advice Line Advisor

Fair Work Commission [2019] FWC 38