By Ross Levin, Partner, Malcolm Davis, Partner, Adam Lunn, Partner and Lisa Anaf, Partner
Will the use of bad and potentially abusive language justify the termination of a worker’s employment?
Will such a termination always be considered to be “fair”?
These matters were considered recently by the Fair Work Commission in the matter of Treen.
In this matter, workers of the employer were in the process of taking protected industrial action against the employer.
The worker (who was involved in that industrial action) left a message on the mobile phone of a co-worker who he believed was not participating in the action, which said,
“Hi mate, just wondering if you are working. If you are you are a f*cking scab.”
A complaint was made by the co-worker. As a result, the employer investigated the matter and the worker was summarily dismissed for misconduct.
The hearing and findings
At the hearing, the employer contended, among other things, that the worker’s behaviour was in breach of its “Equity and Diversity Policy” and “House Rules” in which the worker had received training.
The employer also contended that any remedy ordered by the Commission, if a finding was made in favour of the worker, should be restricted to monetary compensation.
No evidence was presented at the hearing in relation to whether the co-worker felt threatened or intimidated by the message, or that it would impact on any future decision by him to participate (or not) in protected industrial action
The worker apologised to the co-worker via text message, before the co-worker made a complaint to the employer.
Although Commissioner Platt found that the employer had a valid reason to terminate the employment of the worker, he also found that the dismissal was a disproportionate response to the worker’s conduct, which was considered to be out of character. It was noted in this regard that the worker had a history of good service and work performance which did not appear to have been considered before a decision to terminate was made.
The worker was ultimately reinstated to his position and continuity of service was also ordered.
This decision demonstrates that while using bad and potentially abusive language can provide a justifiable reason for the termination of employment, other factors may need to be considered before a termination is actually effected.
In this case, the Commission found that the worker in question had a history of good service and work performance, and that a summary termination was disproportionate to the worker’s poor choice of communication.
When a decision is likely to be made to terminate in similar circumstances, particularly where a worker has a good employment record, further consideration and advice might be required before that occurs.
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