“Particularly cruel and menacing” comments amount to serious misconduct
The Fair Work Commission (FWC) has upheld an employer’s decision to dismiss an employee for serious misconduct for comments they made in a MS Teams chat with a colleague about another employee.
Facts
The employee and the co-worker, who the comments were about, had a history of professional and interpersonal difficulties, including the co-worker previously making a complaint to the employer about the employee being aggressive in her communications, deliberately excluding her and interfering with her belongings.
Following the complaint, the employer reviewed the employee’s MS Teams chat and found a series of messages between the employee and a colleague in which the employee made aggressive and disparaging comments about the co-worker and her belongings, including:
“ohhhh shes a f***ing hypocritical c**t. Who did she whinge to – sib?”;
“fk I just wanna stab her”;
“dont answer her back. Let her feel the icyness (bad karma my a****). Maybe she’ll leave on her own accord”; and
“think a crystal may get smashed one night……”.
The employer subsequently dismissed the employee.
Decision
The employee made an Unfair Dismissal claim in the FWC, arguing that the messages did not amount to misconduct and that the “stab” comment was not made about the co-worker but about a former housemate. The FWC however, found that the employee’s messages were made about the co-worker, including suggesting that they were going to damage her personal belongings and threatening violence against her. The FWC also found that the employee’s behaviour was deliberate and inconsistent with an ongoing employment relationship. The employer was held to have validly followed the Small Business Fair Dismissal Code in forming a belief on reasonable grounds that the employee’s conduct was sufficiently serious to justify summary dismissal.
In upholding the employee’s dismissal, the FWC said that the employee’s use of “work tools” to make the disparaging comments was a relevant consideration. The FWC also commented that the employee’s comments were particularly “cruel and menacing” and had “no place in a modern workplace, exceeding what could be considered the ordinary level or workplace gossip and venting”.
Takeaways
The case confirms that an employee’s conduct using work devices or platforms must still comply with an employer’s policies or procedures, and misuse can amount to misconduct, even where an employee may think the use is private.
Employers also need to monitor usage of work devices and platforms, and electronic communications, to ensure appropriate use and to maintain work health and safety. Employers should:
Ensure monitoring of workplace communication tools: Many businesses use MS Teams chat and similar programs for internal communications. Employers should adequately monitor and review the use of these tools. In this case, the use of a business tool during work hours for a non-work purpose created a strong nexus between the employment and the misconduct, thereby providing grounds for dismissal.
Update your policies: Harassment and bullying policies should explicitly set out that electronic communication platforms must not be used to bully and harass others.
Act promptly: Where misuse of devices or electronic communications occurs, act promptly and appropriately to address the matter.
