“Back to the dole que for you” text, childish but not a dismissal: FWC

An employer has successfully argued he did not sack a receptionist, despite the two of them engaging in a series of spiteful and “childlike” social media exchanges, with the Fair Work Commission (FWC) finding the employee brought the employment relationship to an end over her “perception” that she had been dismissed.

Background

The employment relationship had been somewhat strained since September 2017 when the employer’s business partner dissolved the partnership. The employer claimed he had asked only one thing of his employees since, and that was “loyalty”, but despite this, the receptionist continued to post public messages supporting the former business partner on Facebook.

After being “specifically” asked to stop posting public messages supporting the former business partner, the employer argued the receptionist “mocked” him, posting another comment of support, saying “I don’t care who screen shots this and sends it…Congrats beautiful. Lol!!”

The post was seen by the employer’s wife, who screenshotted the comment and forwarded it to her husband. The employer’s wife also sent the receptionist a text saying, “It is obvious you don’t want to be there anymore”. An exchange was triggered wherein the receptionist indicated that if she wasn’t trusted or wanted at work due to her connection with the former business partner, then the employer could fire her “if that is your choice”. When the employer eventually responded explaining that he wouldn’t be calling her that night because he would “regret what I feel like saying”, adding, “please don’t come in [tomorrow] I will call you”, the receptionist replied that she would “take that message as being sacked due to a comment on a wall” and insisted that she needed things “settled tonight”.

The employer insisted he only instructed the employee not to come to work “tomorrow” but she posted intranet comments telling colleagues she was not coming back at all. She also texted her employer asking for a dismissal letter to which the employer initially replied he had “not thought about a dismissal letter yet” and asked her to meet for coffee the following Monday, adding that he did not “wanna leave it like this” [sic]. The second time the receptionist asked for a dismissal letter for Centrelink, the situation developed into a two-hour text exchange, with the crescendo being the employer stating, “back to the dole que for you luv” [sic].

What the FWC found

In October 2018, Deputy President Gostencnik of the FWC concluded that the employer did not take any action that “resulted directly or consequentially in the termination of the employment”, finding instead that the employment relationship ended because “the [receptionist] did not return to work and advised others that her employment had ended”. The Deputy President added that, it was the receptionist who had “first raised the issue of dismissal” and that it was “clear enough” that she’d had in mind the employment relationship might end.

Deputy President Gostencnik observed that, however “childlike” the employer’s responses appeared, it was the employee’s failure to return to work and her advising other employees that her employment had ended that brought the relationship to an end. “The fact that she did so on the erroneous belief that the [employer] had dismissed her does not result in the termination of the employment having occurred on the [employer’s] initiative”, the Deputy President concluded.

Hall v Michael Bordignon T/A Northern Myotherapy [2018] FWC 6703

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