Smart-alec Text Ends in Employee’s Dismissal
A series of text messages in August last year has resulted in an employee’s dismissal.
What happened
The employee, Mr Fasavalu, was employed by the company HD Projects Pty Ltd (the Respondent) as a labourer. On 16 August 2018, the Operations Manager, Mr McInnes, sent a text message saying Mr Fasavalu would need to work at Turramurra early the following morning. Mr Fasavalu replied that it was too far, especially considering that he had to pick his children up from school. The following text message exchange occurred:
McInnes: “sorry…That is where the work is”
Fasavalu: “take the offer for tomorrow [then]”
McInnes: “You should resign then”
Fasavalu: “Maybe you should [then]”
McInnes: “Ok. I will advise payroll to terminate your employment”
Fasavula: “On what ground you terminally my employment Don. I haven’t had any warning”
Mr Fasavula was not allocated any work for the following three weeks and he made his unfair dismissal application to the Fair Work Commission on 23 August.
Questions for the Commission
The Respondent objected to the application, claiming that Mr Fasavula was not dismissed and had resigned from his employment in the text message exchange with Mr McInnes on 16 August. The Commission was therefore required to look closely at the circumstances to see whether there was in fact a dismissal.
How did the Commission determine this question?
Under section 386(1) of the Fair Work Act 2009 (Cth) an employee is “dismissed” if:
- The person’s employment with his or her employer has been terminated on the employer’s initiative; or
- The person has resigned from his or her employment but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
Commissioner Johns of the Fair Work Commission determined that Mr Fasavula’s employment had been terminated on the employer’s initiative. The Commissioner said:
Having regard to Mr McInnes’ position the Applicant was entitled to rely upon the 4.50 pm Text as an indication that Mr McInnes would “advise payroll to terminate [the Applicant’s] employment.” Nothing in what the Applicant had texted before the 4.50pm Text could be characterised as the Applicant having resigned. He had not. There had been a smart-alec text from the Applicant suggesting Mr McInnes should resign. It no doubt annoyed Mr McInnes. So too the Applicant’s poor attendance record and the times he left site early. However, common sense dictates that the Applicant was entitled to treat himself has having been sacked by Mr McInnes. The action of Mr McInnes (as the representative of the employer) was, therefore, the principal contributing factor which lead to the termination of the employment relationship.
Fasavalu v HD Projects Pty Ltd [2019] FWC 430
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