‘Back to the dole queue for you’: Employee unfair dismissal bid thrown out despite divisive Facebook comments

Under the Fair Work Act 2009, an employee is only protected from unfair dismissal if the employee is actually dismissed. Section 386 of the FW Act sets out the meaning of “dismissed” for this purpose and states that a person has been dismissed if their employment has been terminated on the employer’s initiative or if the person was forced to resign because of the conduct of the employer.

In most cases, it is clear when an employee is dismissed or has resigned. There is usually some formal discussion or at the very least, a termination or resignation letter. However, things can become complicated when employees and employers introduce informal means of communication into their serious employment discussions, such as text messaging or messaging over social media.

There have been a number of cases in 2018 that have involved misunderstandings as the result of messaging over social media or text. In one of the most recent, an employee claimed that she was dismissed by her employer through a combination of texts and a phone call but her employer maintained that he did not dismiss her, instead, she resigned.

The issue for the Fair Work Commission (FWC) in this case was whether the employee was dismissed on the initiative of the employer so as to be protected from unfair dismissal, or whether she resigned of her own accord and was therefore not protected.

The sequence of events that resulted in this matter landing before the FWC commenced when the employer dissolved his business partnership in his myotherapy clinic in 2017. At the time, he asked his employees for their loyalty, but the employee maintained a personal friendship with the former partner, including a Facebook friendship.

The employee posted public messages of support for the former partner which upset her employer. Discussions were had about the public posts but again, in May 2018, the employee posted a public message of support for the former partner that included the phrase: “I don’t care who screen shots this and send it… Congrats beautiful. Lol!!”

The employer’s wife saw the post and sent the employee a text message saying that she would be showing her husband and that she thought the Facebook post showed that the employee did not want to work for her husband anymore.

The employee responded with a text message saying that:

If supporting [the former business partner] is a sackable offence then so be it… Michael can fire me if that is your choice…Please feel free to discuss with Michael then he can let me know his decision before I head in to work in the morning…

About an hour later, the employee received a text message from the employer which stated:

What the f**k Sharon we spoke about this the other day yet you still wanna post not her private page her business page!!!!! I’m not calling you tonight coz I would regret what I like saying please don’t come in tmrw I will call you…

The employee then responded to the employer’s text stating:

So I will take that message as being sacked due to a comment on a wall… I don’t deserve this at all. It is way out of proportion. I need it to be settled tonight… [it] is unfair to make me wait…This is so wrong.

The employee then called the employer that same night and they had a conversation during which the employee claims the employer told her not to come back to work. The employer denied saying this.

The employee did not return to work. She claimed that as a result of what had transpired, she believed that she had been dismissed. The employee then proceeded to post a message on the internal workplace dashboard advising her colleagues that she would not be returning to work.

FWC finds no dismissal

The following day, the employee sent her employer a further text message requesting a dismissal letter. The employer responded by inviting the employee for a coffee and advising that he had not thought about a dismissal letter.

The next day, the employee sent another text message requesting a dismissal letter for Centrelink purposes. A text message exchange ensued which included a message from the employer with the phrase “back to the dole que for you luv” [sic]. The employee responded with “No que for me. Already have work” [sic], despite not having commenced new employment at the time.

Before the FWC, the employee argued that this text message exchange confirmed her view that she had been dismissed. The employer, however, claimed that the employee was the only one to have mentioned a sacking.

About a week after the text message exchange, the employer emailed the employee stating that he would accept her post on the internal workplace dashboard and her text stating that she already had work as confirmation of her resignation.

The employee responded that those communications were made after she had been dismissed and that “it is not a resignation it was a sacking”.

The employee subsequently lodged her unfair dismissal application.

Ultimately, the FWC held that there was no dismissal. It said that, although the employer was clearly angry, there was nothing in his text messages or the phone call which constituted action on his part so as to terminate the employment.

The FWC said:

“The employment ended because the applicant did not return to work and advised others that her employment had ended. That she did so in the erroneous belief that the respondent had dismissed her does not result in the termination of employment having occurred on the respondent’s initiative…

However childlike the respondent’s responses appear, they did not have the effect of retrospectively transforming that which was not at the time a termination of employment on the respondent’s initiative to one that was so.”

The employee’s application was dismissed.

What can your business learn?

Defending a claim in the FWC or some other tribunal or court can be a costly and distracting exercise. Having to do so as the result of a miscommunication over text message is an easily avoidable situation.

Employers (and managers) should avoid engaging in heated text message exchanges with their employees and ensure that serious employment matters are discussed in person or dealt with in thought-out correspondence, not sent as a knee-jerk reaction.

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