FWC regards employer's conduct as 'spiteful' and 'disgraceful'
The Fair Work Commission (FWC) recently dealt with a case involving a worker who believed he was unfairly dismissed from work on receipt of his employer's offensive text messages.
In its defense, the employer contended that the worker ended the employment relationship through his own initiative. Hence, no unfair dismissal occurred.
'Abusive' and 'threatening' messages
Prior to his dismissal, the worker was an automotive technician from 1 July 2022 and worked Monday to Friday each week.
Months later, around October 2022, the worker began to feel unwell—he had lost his voice, and his condition weakened to the extent that he required assistance from the employer to make it through this work. Therefore, the worker considered that the employer was aware of his temporary illness.
By 19 October 2022, when the worker was set to return to work after having an approved annual leave, he was still unwell. Thus, his absence from work, to which the worker noted he failed to inform the employer.
A day later, when the worker visited the doctor, he was diagnosed with tonsillitis and returned a positive COVID-19 test result. He was told to remain home for the next five days to isolate and was issued a medical certificate.
Again, the worker failed to inform his employer of his absence, and he argued that nobody from the company attempted to call him to inquire on his whereabouts.
Text messages claim end of employment
On 21 October 2022, the worker received a text message from his employer: "Your toolbox is on islander road." He then explained that he was COVID-19 positive and showed a picture of his medical certificate declaring him temporarily unfit for work.
However, despite the worker's contention, the employer believed these were all lies. "Not my problem. Incorrect address lies and I said last chance. No phone call so I'm done sorry I have a business to control. See you at court if u want. Your box is on the road!" the employer replied.
"Not my problem. Your problem. Sick of you and being down rite rude towards me," it added.
Meanwhile, the employer argued that it did not initiate the dismissal of the employee, partly because around November 2022, after the worker received the "offensive" text messages, the worker communicated to the human resources manager through text that he "walked away in a decent manner."
The employer further contended that it did not believe the worker's explanation for his absence because of the lack of communication in a timely manner with the worker.
FWC's decision
Ultimately, the Commission found that the worker was indeed dismissed through the employer's initiative and noted that the latter's conduct regarding the text messages was "disgraceful” and "spiteful."
It further said that the fact that the employer sent text messages on 21 October 2022 to the worker directly led to the termination of the worker's employment relationship with the company.
The FWC also noted that the employer's argument of the worker ending the employment on his own initiative was simply a tactic and invention of the employer.
The Commission also found that the worker, in his text messages to the human resources manager, was simply "speaking in general terms, about his own conduct and the manner in which he decently held himself before the [employer]."
