March 18, 2019

March 18, 2019

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March 15, 2019

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Does Sacking Employee for Calling Boss Obscenity Constitute Unfair Dismissal in Australia?

The Fair Work Commission was recently faced with strange scenario, being asked to rule on whether an employer was entitled to summarily dismiss an employee who had inadvertently sent him a text message in which she described him as a “complete d*ck.”

The long-serving administrative employee, Ms Nesbitt, meant to send the text message to her daughter’s boyfriend who was about to do some work at her employer’s new premises. As well as the insult, she also stated “We know this already so please try your best not to tell him [the boss] that regardless of how you feel the need.

After the initial excruciating embarrassment that the text message or email has landed in the wrong inbox, there is a range of options available to the fat-fingered texting employee. These include ignoring it and hoping the boss doesn’t see it (unlikely and wildly optimistic), trying to recall or retrieve the message without the recipient’s or IT forensics’ knowledge (impossible) or apologising promptly and profusely.

Ms Nesbitt opted for the last and tried to rectify the damage by sending two grovelling text messages to her boss, Mr Gardner, who by a stroke of particular misfortune for her was also the company’s Chairman and Managing Director. In doing so, she was contrite but dug herself into an even bigger hole by stating that it was just her sense of humour to exaggerate, the insult was “a family joke” and the boyfriend had a “little problem of very occasionally mouthing off some time and it was no more than a joke exaggerating both issues.” Clumsy, maybe, but well-intentioned. However, she later expressed views to the Board’s two non-executive directors that the situation between her and her boss was “serious” and requested to meet with them separately without her boss’ knowledge. They did not respond directly but she was summarily dismissed (which I suppose is an answer of sorts) and then filed a claim for unfair dismissal.

Ms Nesbitt submitted that the message should be considered in the context of the recipient it was meant for and that she lived with young people who put “complete” in front of every second word out of habit rather than any actual intention to emphasise. Although the FWC agreed that the relationship between Ms Nesbitt and Mr Gardner had deteriorated, it held that she was colloquially sharing her factual assessment of her boss. By using the word “complete”, the message was used to convey the view that “a person is, without exception, an idiot or fool – they are nothing less than a d*ck.” It would be interesting to consider (at a purely academic level, clearly) whether the outcome would have been different without the word “complete.” Had she used the phrase “a bit of a” or “rather a” or “sometimes a”, would that have lessened the legitimate irritation of the boss to the point where summary dismissal was no longer reasonable? Potentially yes, but it would all depend on the circumstances.

In upholding the dismissal, the content of the message was emphatic and trumped the alleged context. Had Ms Nesbitt’s mea culpa included a remotely plausible explanation and not involved a covert separate approach to the non-execs, she may have salvaged the situation and, as with our prequel blog, the FWC may have taken a more lenient approach due to her handling of the aftermath.  However, where your own best explanation is that your boss is a family joke and that in mitigation, you do not think he is a complete d*ck, your employment must necessarily be on borrowed time.

As with our previous post, there is a parallel in English law where insults come accidentally to the ears of their subjects. Back in the 1970s, in Isle of Wight Tourist Board -v- Coombes, the Employment Tribunal there upheld the unfair constructive dismissal claim of an office assistant whose boss described her behind a door he thought was closed as an “intolerable bitch every Monday morning.” In both cases the issue is less that the hearing/seeing of the insult by the subject of it is accidental and more that those are the other party’s views in the first place. In the UK, you can think what you want about your employee or your boss, but you will clearly have only yourself to blame if you give voice to that.

Although calling your boss obscene names in Australia and England may get you sacked (for our US readers, fired), the issue is not so clear-cut in the US. Just this week, the National Labor Relations Board ruled that an employer unlawfully terminated an employee who, in a Facebook status update to his followers – which included a number of coworkers – called his boss a “NASTY MOTHERF-CKER” and a “LOSER” (yes, both times, in ALL CAPS), and added “F-CK his mother and his entire family.” Charming, indeed. The NLRB found, however, that the employees’ comments were in protest his boss’ unfair treatment of the employee and his coworkers, and thus constituted concerted activity protected under the National Labor Relations Act.  Although remarkable, lest you think this decision is an outlier – last year, the NLRB ruled that an employer unlawfully terminated an auto salesman who called his boss, to his face,  a “f-cking crook” and an “a–hole,” and ruled in another case that Starbucks unlawfully fired a barista who told his boss, during a heated argument in front of customers, to “go f-ck himself.”

© Copyright 2019 Squire Patton Boggs (US) LLP

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About this Author

Anna M. Elliott, Squire Patton Boggs, Of Cousel, Labor Attorney, Australia
Of Counsel

Anna Elliott specialises in the area of workplace relations and provides advice, representation and corporate support to clients in all aspects of employment and industrial relations law, both contentious and non-contentious.

Anna acts for clients in a broad range of industries, including media and entertainment, financial services, recruitment, manufacturing, pharmaceutical, construction, professional services and government agencies. The media and entertainment industry as well as the recruitment sector are of particular focus and interest for her.

Prior to joining Squire...

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David Whincup Employment Attorney Squire Patton Boggs Law Firm
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Following ten years at a Magic Circle firm, David has been Head of our London Employment practice since 1994. His expertise gained from twenty-five years as a specialist Employment Law practitioner covers a wide variety of employment-related issues, including in particular individual and team recruitment issues, policy and contract drafting, disciplinary and grievance procedures, individual and collective redundancies, the defence of employee discrimination and dismissal claims and other litigation, whistleblowing, employee health, data protection and matters surrounding confidentiality and intellectual property in the workplace.

David’s clients span a wide range, from senior individuals to household-name corporates, and across all sectors, from aviation and distribution to insurance and sports. However, his particular expertise lies in advising clients in the financial services sector. He is responsible for the firm’s relationships with a substantial number of financial services institutions and regularly advises senior city figures on contract and termination issues.

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Daniel B. Pasternak, Squire Patton Boggs, Phoenix, Labor Litigation Layer
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Dan Pasternak focuses his practice on litigating labor and employment claims, representing management in traditional labor relations matters, and working with employers to develop and enforce business-sensible policies and practices to effectively manage their human resources.

Dan represents employers before federal and state courts and administrative agencies, and in arbitration and mediation proceedings, in employment matters arising under the array of federal and state employment laws, including discrimination, harassment, retaliation,...

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