Case highlights importance of notifying employees of misconduct as soon as practicable
Appropriate language and behaviour in the workplace are vitally important, as it reflects on the company’s professionalism and can also help to create a safe and comfortable work environment.
The Fair Work Commission (FWC) dealt with the case of a chef who was fired for using foul language, but he argued that the employer tolerated such conduct.
Was there unfair dismissal?
The employee started working for the business around March 2019 as a brand ambassador with sales representative duties as he also secured and processed orders from the employer’s customers.
He worked as a chef and restaurateur while the employer carried on a business that sources and supplies food to caterers, restaurants, hotels, and other hospitality businesses.
Dismissed for misconduct
In May 2022, he was summarily dismissed for misconduct by a letter of the same date. The employer said he was dismissed for “the way” he allegedly communicated with his colleagues and potential clients, among other conduct that violated his contract.
The employee had a colleague that “kindly asked” him for information to ensure a customer was “getting the right product,” but in the email, the employee replied with:
“Don’t ever talk to me. Don’t ever email me. Cause your nothing. And yes your useless. And a suck arse.”
The colleague responded with “WOW, you’re one to talk! Don’t come at me with that when you don’t know what you’re talking about.”
The employee then emailed back with, “That’s the problem you don’t know your job. You duck at it.”
Another co-worker came forward and said he had a similar experience with him through text, with a message from the employee that said: “You licking his arse please stay out of my life you looser.”
The employee admitted the exchanges and said, “while regrettable,” argued that it “was typically used language at the company and language often used in a kitchen.”
The employee said the employer ended the employment in a telephone call. He said management told him, “Don’t bother coming back tomorrow. You’re out of here.”
The employer also said the employee “abused” the company and said he was “done” and hung up.
An hour after the conversation, management sent a message to all the employee’s customers, saying he was on “leave” and orders should be sent directly to them instead.
The parties’ arguments
The employee admitted “the use of bad language on certain occasions in the workplace” and acknowledged that “his choice of language could have been wiser.” However, he said, “swear words in the workplace had long been tolerated and had not been the subject [of] disciplinary action.”
He said the dismissal was “overly harsh” since the incidents brought up against him had “occurred months or years before” but argued the employer “took no action regarding at the times they occurred, despite having knowledge of at least some of the incidents.”
On the other hand, the management said its duty was to “preserve the safety and the health of all employees.
“When employees come and advise they have had to go to a counsellor, that was not good, and was not something he could tolerate,” it said.
However, it conceded that while it might not have “followed procedure to the letter,” it said it was “100% sure [it] had made the right choice.”
HRD previously reported about the case of a “neglectful worker” who sent inappropriate messages, but the case was also tainted with procedural issues.
In another HRD report, the employer was faulted for failing to “provide formal reasons” to its worker who was fired for underperformance.
The FWC’s decision
The Fair Work Commission (FWC) noted the employer failed on two procedural matters. First, failure to warn him “sufficiently” regarding unsatisfactory performance during employment, and second, the notification of, and ability to respond to the reasons regarding his capacity or conduct.
“Employees have to be warned not to abuse co-workers,” the FWC said in its decision.
But in this case, the employee “was not aware” of the offensive email and text message “until around the time of, or after, the termination,” the commission said. “That conduct did not relate to performance,” it added.
Thus, it ruled that although the employer may have valid grounds to terminate his employment, the dismissal was unjust, unreasonable and harsh because the management did not follow the proper procedure.
Consequently, the commission awarded compensation to the employee but reduced it to 50% due to his misconduct.
