Recent FWC case draws line between workplace banter and misconduct
The Fair Work Commission (FWC) recently dealt with a case where a worker claimed he was unfairly dismissed after sending emails to staff members. The worker maintained he was forced to resign and that proper termination procedures weren't followed.
The case raised important questions about workplace communications and what constitutes a valid resignation versus dismissal.
While the worker argued he intended to provide a formal resignation letter at a later date, the employer treated an email exchange as an immediate resignation - leading to a dispute that would test the boundaries of employment termination under Australian law.
The worker was employed as a commercial manager at a phosphate mine near Mt Isa, working on a fly-in, fly-out basis. He reported to the general manager for operational matters and to the managing director for other responsibilities. His employment began in December 2021, with an annual salary of $160,000.
On June 21, 2024, the situation escalated when the worker sent emails to the head chef that were described in evidence as "belittling and insulting." These communications prompted the head chef to file a complaint, not only about the emails but also about the commercial manager's general conduct towards him and his wife, who also worked at the site as a chef.
The general manager intervened immediately, telling the worker there was "no need to be sending this type of email" and noting he "had to console [the head chef] in tears." The manager emphasised that addressing issues through this communication style was not acceptable workplace conduct.
When directed to apologise, the worker instead sent another email to the head chef stating: "Not impressed with your allegations. But we can work on your weaknesses... Please excuse the words but you have to grow some balls."
The general manager then outlined formal allegations of bullying and harassment, citing Section 789FD of the Fair Work Act 2009, which defines workplace bullying as repeated unreasonable behaviour creating a risk to health and safety.
In response, the worker characterised his emails as "specifically crafted for a purpose" and referred to getting the head chef's "venom documented." He argued these were examples of "friendly banter between friends."
The situation reached a turning point when the employer cancelled the worker's return flight to the mine site. That evening, the worker sent an email that became central to the dispute over whether he resigned or was dismissed.
The Commission found the email was actually "a request for more time to respond to the allegations and the proposal... It was not a resignation letter. It expressed an intention to provide a resignation letter in the future."
The employer's subsequent actions, including paying three months' salary in lieu of notice, were inconsistent with a voluntary resignation scenario. As noted in the decision: "If [the worker] had actually resigned he would have been the one required to give notice, not the company."
The Commission determined the dismissal was valid, noting the worker's emails were "belittling and insulting. Criticising [the head chef's] English was plainly offensive. Copying in other people made those emails more humiliating."
Despite being on leave, the worker had been given opportunities to respond to the allegations. The Commission found that since he continued to send work emails throughout his leave period, being on leave did not impede his ability to respond to the concerns raised.
The worker's response to the situation, including his lack of remorse and attempts to justify his conduct, ultimately supported the Commission's finding that the dismissal was neither harsh, unjust, nor unreasonable.
The Commission concluded: "[The worker's] poor conduct was serious and was self-evidently a valid reason for dismissal. He was notified of the reason and given opportunities to respond."
