Sending “abusive” text messages out-of-hours a valid reason for dismissal

The Fair Work Commission (FWC) has backed the Commonwealth Bank’s (CBA) dismissal of a customer engagement specialist who argued that it could not discipline him for sending his manager text messages out of working hours.

The specialist sent more than 50 text messages to his manager over three days in the early hours of the morning and late evening.

Commissioner Sarah McKinnon found the messages to be “extremely disrespectful” and some were threatening. The specialist’s manager made it clear that the text messages were unwelcome and wanted them to stop.

The specialist accused the CBA of unfairly dismissing him for complaining about his manager and that his messages were misinterpreted and that he could not be disciplined for any out-of-hours conduct.

In handing down her decision, Commissioner McKinnon referenced previous decisions where an employee was dismissed for out-of-hours conduct, stating that the conduct must be likely to cause serious damage to the relationship between the employer and employee, or be damaging to the employer’s interests.

The CBA’s conduct policy requires employees to treat others with respect and courtesy, and describes unacceptable conduct as including “offensive, belittling, abusive, teasing or threatening behaviours.” The Commissioner found the policy to be reasonable, including in its application to out-of-hours conduct that is directly work-related and likely to give rise to employee psychosocial risk.

Commissioner McKinnon considered the messages likely to cause serious damage to the employment relationship, damaging to the CBA’s interests and likely to harm the manager. Concluding that the specialist’s conduct provided a valid reason for dismissal and that he was offered a fair process, Commissioner McKinnon dismissed his unfair dismissal application.

Key take away

Some out-of-hours conduct can be considered work-related and therefore justify disciplinary action or dismissal, if the conduct:

• is likely to cause serious damage to the relationship between the employer and the employee, or
• damages the employer’s interests, or
• is incompatible with the employee’s duty as an employee.

These factors should be considered when deciding whether out-of-hours conduct could be regarded as work-related, and therefore whether the employer may be able to take disciplinary action against the employee.