A lesson for every Tom, D*ck and Harry: Getting sacked for insulting your boss is not Unfair Dismissal
Posted on April 23, 2015
In Nesbitt v Dragon Mountain Gold Limited [2015] FWC 779, Ms Nesbitt had been employed as an Office Administrator/Bookkeeper since 17 November 2007. Rob Gardner was the Chairman and Managing Director of Dragon Mountain Gold Limited and to whom Ms Nesbitt reported.
On 12 January 2014, Ms Nesbitt was required to arrange for plumbing work to be carried out as part of renovations at the employer’s office. Conveniently, Ms Nesbitt’s daughter’s boyfriend was a plumber. On this day, Ms Nesbitt accidentally sent a text message intended for the plumber to Mr Gardner, which read as follows:
“Now remember ... Rob is a complete d*ck...we know this already so please try your best not to tell him that regardless of how much you might feel the need.”
This text message was quickly followed by the following apologies:
“Rob please delete without reading. I am so so so sorry. Xxx”
“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. It is not how I feel. That was a joke within our family ... Robby [the plumber] has a little problem very occasionally mouthing off some time and it was no more than a joke exaggerating both the issues. Yes I do feel that my ideas are all ignored but that’s ok it’s not my building and all I can do is put forward suggestions and hope one or two get implemented. Rob...that it is not how I feel ... 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.”
As a result, on 17 January 2014, Ms Nesbitt’s employment was terminated by reason of “gross misconduct”. Consequently, Ms Nesbitt filed an unfair dismissal application on the basis that the initial text message was a mistake which she had apologised for, and therefore did not amount to a valid reason for dismissal.
As a small business employer with only two employees (Ms Nesbitt and Mr Gardner), Dragon Mountain Gold Limited was subject to the Small Business Fair Dismissal Code. The Small Business Fair Dismissal Code contains a lower threshold as to what constitutes a fair dismissal. The Fair Work Commission (FWC) considered the key issue to be whether the employer believed on reasonable grounds that Ms Nesbitt’s conduct was sufficiently serious to justify immediate dismissal.
In the current context, the FWC accepted Mr Gardner’s evidence that Ms Nesbitt’s comment that he was “a complete d*ck” was highly offensive, derogatory and a shock given their long working relationship. Therefore, Ms Nesbitt’s conduct was found to be sufficiently serious to justify summary dismissal.
This decision highlights to small business employers in particular that not all employee misbehaviour will require a process of issuing warnings and following-up if necessary. In the current circumstances where the incident involved the employer’s only two employees, the FWC considered the employer’s swift action to be an “absolute necessity”.
Please contact a member of Lynch Meyer’s Workplace Relations team if you require advice about the conduct of your employees.
