EMPLOYEE WINS UNFAIR DISMISSAL CASE AS IT WAS FOUND THAT HIS

EMPLOYER WAS RUDE FIRST Presented By Owen Hodge Lawyers

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Introduction“[I]t takes two to tango,” the Fair Work Commission noted in its recent decision in Hain v Ace Recycling Pty Ltd.

The fact that FWC upheld the unfair dismissal claim of an employee who was sacked after swearing at his employer hardly opens the floodgates to workplace profanity, though. Rather, the Commission evaluated the exchange in its entirety and confirmed that business civility is a mutual obligation.

He Said What?

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Things got heated when a recycling worker complained to the company’s CEO about unpaid overtime.

The CEO reportedly responded. 'I am a f***ing wealthy man, you shouldn't worry about f***ing money.”

The labourer replied, “You are earning more f***ing money than me, I can't afford to put food on the f***ing table for my family,” and concluded with,” 'that's not my f***ing problem you owe me money you old c***.”

The CEO fired off a text message thereafter: “The old man here. Do not come back tomorrow thanks.”

It was nice to say, “thanks,” we suppose.

Finally, it also appears that the worker’s anxiety about getting paid was well founded, as the company subsequently went into liquidation.

He Said What?

There is ample precedent in Australia to justify firing employees for profanity-laced rants, even when conducted outside office hours, via Facebook and among friends. The Hain decision is less about language than context.

The first difference is that the CEO was apparently the first to escalate in response to a lawful inquiry about terms and conditions of employment. Further, the dismissal occurred via text, which did not permit the employee procedural fairness including an opportunity to respond.

BULLY?

or RUDE?

Unfair, not Unlawful The Commission found the dismissal “unfair,” meaning that it occurred in circumstances that were harsh, unjust or unreasonable. Nonpayment, swearing and firing by text all seem to fit that description.

Unlawful dismissals, on the other hand, are generally associated with breaches of the Workplace Relations Act 1966 and are primarily based on discrimination grounds and notice periods. The difference is important because remedies in the two situations may be different.

On finding that the worker’s dismissal was unfair, the Commission ordered the employer to pay $828 in compensation less tax. Less helpfully, it advised the employee to seek further compensation for unpaid wages and other entitlements from the company's liquidator.

We Can Help

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Our employment law specialists have a wealth of experience in all areas of employment law. If you have concerns about unfair or unlawful dismissals or whether your business’s procedures for handling terminations comply with the law, please call Owen Hodge Lawyers at 1800 770 780 to schedule a consultation. We look forward to assisting you.

1800 770 780

ohl@owenhodge.com.au