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Employee wins unfair dismissal despite swearing at boss

May 26, 2016

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A labourer at a western Sydney waste recycling facility has won his claim for unfair dismissal despite calling his boss an “old c – – t”.

The comment was made during a heated telephone conversation in which the company’s CEO became aggressive and started swearing after the worker had enquired about unpaid overtime. The worker was subsequently dismissed, via a text message, with the CEO advising him “the old man here. Do not come back tomorrow thanks“.

The decision

Deputy President Ingrid Asbury had no problem in finding that the company had a valid reason for the termination, but heavily criticised the process undertaken. Ultimately, it was the company’s process which rendered the dismissal unfair.

The Deputy President said that the inappropriate comment was indicative of a breakdown in the employment relationship, which would generally provide an employer with a valid reason to dismiss an employee. She did not, however, accept that the text message was an appropriate mechanism to advise the employee of the dismissal, highlighting that a text message triggered other issues of procedural fairness such as an opportunity to respond.

What does this mean for employers?

Simply having a valid reason may provide little, if any, protection, particularly if the process itself is found to have been harsh, unjust or unreasonable.

While there will always be a level of risk associated with a dismissal, implementing effective workplace policies and following proper procedure is the easiest and most effective method of reducing this risk.

Regardless of the reason, employers are advised to carefully consider the circumstances and ask themselves: can it be argued that the decision is either harsh, unjust or unreasonable? If the answer is yes, further steps to reduce this risk should be taken.

For more information regarding unfair dismissal in your business please contact the HR Assured team on 02 9083 0083 or fill in our contact form and we’ll call you back.