Fair Work decides if there was valid reason to dismiss
In an unfair dismissal case, the Fair Work Commission (FWC) recently dealt with an employer’s defence that it was justified in terminating a worker’s contract after they called management “cunts” in its staff Facebook group chat.
The worker, Reema Saad, filed an unfair dismissal claim against their employer, M.A Lisek & S.S Louth-Robins. The employer disputed the worker's application, contending that the worker had resigned.
The latter, engaged as a casual bartender since mid-April 2022, took an overseas holiday from May 20 to July 2, 2023. Before departing, the worker informed the employer of their intention to "quit at the end of July."
Despite a decline in available shifts, an arrangement was made for the worker to work one shift per week upon their return.
Conflict arose when the employer indicated limited available work upon the worker's return in a Facebook message on June 26. The ensuing conversation became tense, with the worker seeking clarity on shift availability.
A subsequent email from the employer on July 11, titled "Formal Conditions for Notice," outlined performance concerns and announced that the worker would no longer work unsupervised.
The email cited issues such as lateness, subpar cleaning, dispensing free drinks, resistance to new management, and rudeness. The worker was offered supervised shifts until the end of their notice period.
The worker replied, seeking the names of complainants and questioning the communication about shifts.
The employer denied the request to provide names and informed the worker of a supervised shift on July 16. Subsequent exchanges and posts in the staff Facebook group led to a breakdown in their relationship.
The employer, after a discussion among managers, decided to cease offering shifts requiring only one person due to concerns about the worker's conduct. An email on July 13 from the employer left the worker feeling dismissed.
The worker then posted grievances in the staff Facebook group, calling some management members “cunts.”
In its decision, the FWC said the worker admitted to directing the vulgar term at management in the staff Facebook chat.
“At the time this was posted, the [worker] was still an employee. [It was posted] for all other staff members to see their grievances with [the management].”
“Without explanation, the [worker] also directed the slur at one of the bar managers. This wilful and deliberate behaviour directed at the management and ownership of the [employer] was inconsistent with the continuation of the contract of employment and was, therefore, serious misconduct constituting a valid reason warranting summary dismissal,” the Commission added.
Moreover, the FWC said that the worker’s “choosing to describe the [management] as ‘cunts’ in the staff Facebook chat was [not] justified.”
“This deliberate act was calculated and did not need to occur. The [worker] had a choice. There was no obligation on the [worker] to work any further hours for the [employer],” it said.
They could have elected to work the remaining hours on offer on the terms outlined or, equally, as a casual employee, they could have elected not to work any further engagements and ceased immediately.”
“Instead, the [worker] chose to direct a wholly disrespectful slur towards the owners of the [employer] and its manager in a public manner. This warranted immediate dismissal,” it added. Thus, the FWC said that the employer was justified in summarily dismissing the worker.
