Manager's disturbing Facebook chats cause strain on employment relationship
A worker recently filed an unfair dismissal claim before the Fair Work Commission (FWC), alleging that his general manager’s inappropriate behaviour after-hours terminated his employment. The alleged conduct included spamming the worker’s Facebook Messenger with disturbing messages.
The worker, Joel Amey, filed a general protections application for the adverse action taken against him by his employer, Organic Life Distribution Pty Ltd.
Amey started his employment with the employer on December 12, 2022, as a part-time warehouse manager, later transitioning to a full-time delivery driver role on January 3, 2023.
On February 14, 2023, Amey suffered a workplace injury while making a delivery, prompting a workers' compensation claim. Complications arose as the employer was not insured in Queensland, where he's a resident.
While dealing with the worker's circumstances, the employer's general manager Byron Scott attended medical appointments with Amey, leading to discomfort on the part of the worker.
Despite returning to work on light duties in line with a doctor's certificate, Amey reported ongoing pain.
Concerns escalated when Scott insisted on being present at a medical appointment on March 21, 2023, a request that Amey found unsettling.
Correspondence ensued regarding the worker's return to work and his WorkCover claim, with Amey emphasising the worker’s preference to put all of their agreements in writing.
On March 27, 2023, Scott allegedly engaged in after-hours communications, including text messages and Facebook Messenger exchanges containing unsettling content. Amey said that he was dismissed on March 27, informing WorkCover the next day.
According to records, the worker received multiple messages from Scott via Facebook Messenger out of work hours, between 9:42 pm to 1:07 am on March 28, 2023, with a picture of the worker, a link to a Spotify song ‘Liar Liar (Burn in Hell), an Instagram picture of the worker holding his child and another link to a song titled ‘Bullshit’ by the Dune Rats.
On April 8, 2023, at 9.38 pm, Scott sent the worker over 200 messages via Facebook Messenger, which appeared to be spam minus a message such as "lawyer up."
Scott also sent long text messages regarding the worker’s lack of communication and WorkCover claim from 10:52 pm to 2:01 am the next day, with "concerning content involving self-harm."
The FWC had to determine whether the general manager had the actual or apparent authority to terminate the worker's employment and whether his actions constituted a dismissal due to their "out-of-hours nature."
The Commission said that "in assessing out-of-hours conduct, it must have a relevant connection to the employment relationship."
"The conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employee and employer; or the conduct damages the employer's interests; or the conduct is incompatible with the employee's duty as an employee," the FWC added.
When the manager was dealing with the worker, the Commission said that Scott "was entrusted with the apparent authority to act on behalf of the employer."
"This was indicative when Scott provides the rostered tasks, conducted the hiring interview and offered the letter of employment to the worker."
The Commission said, "it was clear" that Scott had "the apparent authority to act."
"The numerous messages of concern, including a reference to self-harm, would have resulted in bringing the employment relationship to an end. His out-of-work hours conduct had a significant enough connection to his work by virtue of that being the only link between him and the [worker], and his reference to work-related content like the [worker's] WorkCover claim,” it said.
"It was clear that Scott’s actions resulted in the worker’s continuing employment being untenable. The employment relationship appeared to have been seriously damaged resulting from the conduct of Scott," the FWC added.
Thus, the FWC said that the general manager’s conduct caused the worker’s dismissal. It then scheduled the matter for a conference.
