Case explores how private communications could be ground for termination
How should an employer distinguish between respecting an employee’s private communication and ensuring a safe and friendly workplace?
During an employee’s job in an ambulance service in New South Wales (NSW), he sent “inappropriate messages” through email, text, and messenger about staff members to his direct manager. Even the employee admitted that the messages were indeed “inappropriate” and “disgusting.”
The employer found these messages as one of the grounds for the employee’s dismissal because of the breach of the code of conduct which states “staff must treat all other members of staff … in a way that promotes harmonious and productive working relationships.”
The employee admitted to sending various emails and text messages to his direct manager between 2016 and 2020, where he referred to workmates via numerous insults, including calling them: a "bunch of spastics”; a "gobshite"; "c****"; and the "retard crew".
The employee argued that the email messages between him and the line manager were “intended to be private and never shared with other people.” He said the messages were merely about “two managers venting their frustrations in what was an extremely stressful job, working in a toxic environment".
The Commission’s decision
The NSW Industrial Relations Commission (IRC) dismissed the employee’s appeal against his termination. It found that the employer appropriately terminated the employee’s employment because of violating its code of conduct.
While the Commission recognized the employee’s grievance about his private comments “being made known by others,” the IRC said the employee “should have acknowledged the possibility that once he made the comments, there would always be a risk that they would be discovered or shared to anyone.”
The Commission also rejected the employee’s submission that there was insufficient evidence to conclude that his behavior led to an unsafe and hostile workplace.
“The messages themselves were evidence of a negative culture and a psychologically unsafe workplace,” the IRC said.
The IRC further explained that the conclusion of the employee’s appeal “could have been different” if the employee had taken greater responsibility for his conduct. The IRC noted that throughout the case, “the employee maintained that [he was a] victim,” depicting himself as the subject of a “witch-hunt.”
Additionally, the employee did not have any evidence to support his claims that the investigator or employers were searching for evidence to terminate his employment for an improper purpose.
The Commission also said it was open to giving the employee other forms of disciplinary measures such as a formal warning or demotion. Yet, after careful consideration, it deemed the employee as “not fit to occupy a managerial position and that the employer’s lack of confidence in his capacity to comply with its code of conduct in the future is properly founded.”
Thus, the IRC ruled that the employee was not unfairly dismissed and rejected his appeal. The decision was handed down on 16 June.
Takeaways for HR leaders:
- Remind employees to avoid berating colleagues and always use appropriate language, even during private communications, to avoid conflicts in the workplace
- Provide a fair and appropriate warning for employees whose performance and conduct do not meet the workplace standard
- Offer sufficient support to the employees and ask them for appropriate updates regarding their work environment
- Provide a system where employees could safely and adequately air their grievances in the workplace.
- Ensure a positive working environment for the employees