The Fair Work Commission recently upheld a dismissal by Toll Transport Pty Ltd (Toll) of a male employee who sent a colleague a text messages calling him his "bitch", "toy boy" and threatened to "molest him" and "squeeze his testicles until it made him cry".
- Whether there were valid reasons for the dismissal.
A 63 year old male employee made an unfair dismissal application to the Fair Work Commission after his employer, Toll, conducted an investigation and found that the employee’s text messages were inappropriate, offensive, vulgar and of a sexual nature, contravening Toll’s Code of Practice.
It was revealed during an investigation into the conduct of the employee that a younger man, a forklift driver, had been 'playing him off' hoping that the older man would advance him money.
Text messages revealed that the 63 year old, in resisting the request for money, said to the younger forklift driver, amongst other things, “For fucks sake you little bitch. Stop trying to fleece me…. not your milking cow… no moo moo. Next time I molest you, you will put my hand on your little balls and squeeze them till you cry…”. The younger man later complained to Toll who launched an investigation ultimately dismissing the 63 year old employee.
The Decision at Trial
A Commissioner of the Fair Work Commission said that although the forklift driver may having found the text messages acceptable initially, the declarations of love made by the 63 year old man and his aggressive text messaging was plainly inappropriate.
At the hearing, Toll could not establish to the Fair Work Commission’s satisfaction that it had issued its Code of Practice to the 63 year old employee but accepted that the conduct need not be in breach of the Company’s policies to warrant a valid dismissal as the conduct itself could also be regarded as wholly inappropriate. Further, the dismissal was, although procedurally deficient, not unfair in the circumstances.
The Commission placed relevance on the fact that the text messages were communicated within workplace hours, however, noted that there were boundaries relevant to acceptable conduct with respect to work colleagues which should not be crossed outside of work hours.
Implications for you
Employees should remember that text messaging work colleagues, even from private phones, within the workplace ought be done with respect, civility and in good conscious not to harass, embarrass or intimidate.
Text messages to the contrary may be grounds for valid dismissal whether or not an employer has specific policies that have been breached, if the conduct can be regarded, in all the circumstances, as inappropriate.
Anthony Clarke v Toll Transport Pty Ltd  FWC 606 (11 February 2019)