Sacked employee ‘unfairly dismissed’ over offensive language

Thursday 19 May, 2016 | By: Colin Fruk | Tags: fair work, unfair dismissal, performance management, HR

The Fair Work Commission has ruled that a worker who called a company executive a highly offensive swear word and was later sacked via text message was unfairly dismissed.

Documents obtained by Yahoo7 News outline the decision by the Fair Work Commission and state the message in which the worker was fired followed a verbal altercation over the phone between the Ace Recycling Pty Ltd executive and the worker.

Man wearing hardhat

 

The worker claims he was directed to work overtime in circumstances where he had not been paid for previous overtime.

He alleged when he raised this issue with the executive, his response was aggressive and provoked the verbal altercation in which he called the executive "an old c---".

According to evidence the phone call between the pair took place on September 22, 2015 at 2.04pm.

The conversation was described in a witness statement by the employee which was put forward as evidence: "...[I] said “are you on the way to the yard?” he responded with “in the next couple of hours. Why?” so I said “I want to speak to you in regards to my overtime pay” he said “why? Are you worried about money?” I said “yes” then his whole demeanour changed and he became aggressive and started swearing at me."

The employee then alleges the executive said words along the lines of "I am a f---ing wealthy man, you shouldn't worry about f---ing money".

He then claimed the executive swore at him a few more times, and by this point he was angry and called him the highly offensive expletive.

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The evidence states there were two messages to the employee following the conversation.

The first was received after the employee missed a call from the executive; it was a voice messages which had been converted to text.

It allegedly said: “Where are you pussy cat. Big ---mouth on the phone straight. I’m an old man remember when you come over here or --- show what a --- all means mate I’ll be.”

The evidence states the employee claims he didn't respond to the message as he thought the executive was trying to provoke him, but an hour later he claims he received the message: “the old man here. Do not come back tomorrow thanks”

The decision documents by Deputy President Asbury stated: "While I have some sympathy with this submission it is also the case that it takes two to tango. Ace did not take advantage of the many opportunities it was given to put its case before the Commission."

Ms Asbury stated: "In my view, an employer will generally have a valid reason to dismiss an employee who directs such a comment to the CEO or a manager or to another employee, although there may be other factors – such as provocation – that make the dismissal otherwise unfair."

During the decision Deputy President Asbury also said that text message was not an appropriate way to tell someone they had been fired. "I do not accept that a text message is an appropriate mechanism to advise an employee of dismissal and the reasons for it. "

 

Ace Recycling Pty Ltd has been ordered to pay the worker $828.00, less taxation, in lieu of reinstatement. 

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This is a copy of an article from www.smh.com.au posted on 3 October 2016.

 

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