Barrage of nasty text messages to his manager was valid reason for dismissal

By Mike Toten Freelance Writer

An employee who sent a large number of text messages to his manager claiming she was incompetent and should be dismissed has lost his claim of unfair dismissal. The Fair Work Commission (FWC) said that the volume and content of the messages were likely to cause a psychosocial risk to the manager and other employees. It rejected the employee’s defence that the messages were sent outside work hours, were not work-related, and that their contents were justified.

Facts of case

The employee was a bank officer. He sent more than 50 text messages to his manager within two three-day periods a month apart, mostly late at night or in early morning. The messages claimed she had not supported him in relation to certain work matters, had not addressed certain work issues and had made an error with his pay that caused him to go into debt. Many of the messages claimed that she was incompetent and should lose her job. He also claimed she had “torpedoed” his attempt to transfer to another job within the bank.

The FWC found that the messages were disrespectful and belittling, and because the two of them worked close to each other in the office, they posed a risk to the manager’s psychological safety – which in turn could affect the business viability of the bank via lost productivity and extra costs.

Because the texts expressed a desire that the manager lose her job, the bank was justified in believing that the work relationship between the two was untenable, and their continued working close together would risk that the employee would not show due care for the health and safety of his co-workers, nor treat managers with due courtesy and respect. 

The employee claimed that his texts were factually accurate, not intended to harm his manager, and were misinterpreted by the bank in order to dismiss him. He claimed he was dismissed for having complained internally about the manager.

The FWC found that the employee had ignored the manager’s request to stop sending text messages, other than to send her a laughing emoji, and the manager had always responded to him politely. 

The bank dismissed the employee for misconduct that included bullying and breaching its code of conduct and his duty to take reasonable care for the health and safety of co-workers.

Decision

The FWC rejected his claim of unfair dismissal. It found that the text messages arose in the context of employment and posed a risk to the psychological safety of his manager and other employees. It was clear that he did not, and could not, meet his obligations as an employee.

What this means for employers

Misconduct that occurs outside normal working hours can still be “in the course of employment” if there is sufficient connection to the employment, as in this case.

Misconduct that poses a potential threat to the psychological safety of other employees, and/or breaches an employer’s code of conduct – for example by being discourteous or disrespectful to other employees – can be a valid reason for dismissal.

Read the judgment

Pawelczyk v Commonwealth Bank of Australia [2024] FWC 2115 (15 August 2024)