As HR advisors, we often have conversations with managers about employees demonstrating inappropriate behaviours, however there is an underlying fear of taking action (especially termination) due to the risk of a Fair Work claim. Does that risk exist? Absolutely. But this recent case highlights our long-held position that employers can and should take objective, reasonable management action when dealing with inappropriate behaviours.
You can’t stop a disgruntled ex-employee from making a claim, but you can certainly position yourself to strongly defend it when you know that the decision was valid and the process was fair. Obviously, the process should aim to nip any poor behaviours in the bud early to enable an ongoing productive relationship, however, read on to find out how the Fair Work Commission (FWC) assessed the Commonwealth Bank’s (CBA) actions when it escalated beyond this.
In Daniel Pawelczyk v Commonwealth Bank of Australia [2024] FWC 2115 (15 August 2024), the FWC backed the Commonwealth Bank’s sacking of an “insubordinate” worker who argued the employer could not discipline him for pummelling his manager with abusive text messages because he sent them outside of working hours.
What happened?
The CBA customer engagement specialist sent more than 50 messages to his manager over three days in November and three days in December 2023, largely in the early hours of the morning and later in the evening.
The Commissioner described the messages as “extremely disrespectful.” Some were threatening, and they made clear his “disdain for her managerial ability and his desire for her to lose her job.”
His “unfailingly polite” manager told him after the initial barrage that she had “not taken anything personal” and was “fine” to keep working with him. But when his behaviour escalated the following month, Commissioner McKinnon said she made it clear the messages were unwelcome and that she wanted them to stop. He responded with a “ha ha” laughing emoji and sent another 30 messages outside of work hours.
The specialist, who expressed frustration about a mix up (he used stronger words) in his schedule after switching from casual to permanent employment, a failed transfer application, delays in dealing with overpayment issues, and a refusal to let him work from home while travelling to perform paid comedy gigs, lodged a complaint against his manager.
Commissioner McKinnon described his complaint as “very disparaging”, observing he called his manager a “regulatory breach”, suggested the CBA should fire or demote her, and claimed it would be an “act of compassion” to put her “out of her misery” as she was “clearly out of her league”.
The CBA directed him not to contact the manager while it investigated his complaint.
But when an executive manager reminded him of this, the specialist replied “[s]he is my boss I can copy her in work emails until I no longer report to her”. Commissioner McKinnon said this was “as insubordinate as it was incorrect.” He lodged a separate grievance against the executive manager, later admitting he did so for “amusement” given the state of his relationship with the CBA.
The unfair dismissal claim
After an investigation the specialist was dismissed from his employment. He accused the CBA of unfairly dismissing him for complaining about his manager and claimed that the CBA could not discipline him for out-of-hours conduct.
Legal principles
Commissioner McKinnon noted a full bench in Rose v Telstra (1998) held that while an employer can validly dismiss a worker for out of hours conduct, it must be “likely to cause serious damage to the relationship between the employer and employee,” damaging to the employer’s interests, or “incompatible” with the worker’s duty.
A full bench in Ventia Australia v Pelly (2023) found it need not be “repudiatory of the employment contract” but has to be “of such gravity or importance as to indicate a rejection or repudiation” and “sufficiently connected” to their employment.
Conduct only possible because of employment
Commissioner McKinnon found that the impugned conduct of the worker was only possible because of his employment, adding it was through his position in the CBA that he met the manager and obtained her contact details as well as knowledge of her working hours.
It occurred in the context of the CBA’s duty to comply with Occupational Health and Safety (OHS) legislation “including by managing psychosocial risk” and the specialist’s own duty “to take reasonable care” for the health and safety of others who may be affected by his acts.
The CBA group conduct policy requires employees to treat others with respect and courtesy and describes unacceptable conduct as including “offensive, belittling, abusive, teasing or threatening behaviours.”
Commissioner McKinnon found the policy “reasonable, including in its application to out of hours conduct” that is “directly work-related and likely to give rise to employee psychosocial risk.”
Messages “deliberately sent out of hours”
With the connection between the worker’s conduct and his employment “readily apparent”, the Commissioner said his messages “were deliberately sent out of hours because, according to [the worker], this was the only time [the manager] would respond”.
Finding “no context outside of work in which the messages could have arisen,” she considered them “likely to cause serious damage” to the employment relationship, damaging to the CBA’s interests and likely to harm the manager.
Although Commissioner McKinnon accepted the worker’s distress over the CBA’s overpayment “was not well handled” and she considered its HR team “must take responsibility for its passive approach in dealing with the issue, which caused unnecessary angst” between him and the manager, she found this did not outweigh his conduct.
She said his “sustained, hostile and at times threatening” messages were “deliberate and they were targeted”, while there was also “some evidence of actual harm” in the manager’s “characterisation of his messaging as a constant ‘put down’, insulting and harassment that made her feel threatened for doing her job”.
Findings
Concluding his conduct provided a valid dismissal reason and that the CBA afforded him a fair process, Commissioner McKinnon dismissed his application.
This case serves as a crucial reminder for employers to enforce respectful communication in the workplace. If you’re facing similar issues, reach out early! Prompt action can improve outcomes and strengthen your defence against unfair dismissal claims.