A recent Human Capital email in my inbox reminded me of a case earlier last year where a small business employer dismissed an employee for sending a text message to her manager calling him a "complete dick".
Colourful texts aside, I find Louise Nesbitt v Dragon Mountain Gold Limited [2015] interesting because it touches on both serious misconduct for small business employers and abandonment of employment.
Dragon Mountain is about as small as a small business can get, consisting of two employees. Mr Gardiner, Chairman and Managing Director and Ms Nesbitt Office Administrator/Bookkeeper.
On 12 January 2014, Ms Nesbitt sent a text message intended for her daughter's boyfriend to Mr Gardiner stating "Remember.... Rob [Mr Gardener] is a complete dick... we already know this so please try your best not to tell him that regardless of how much you might feel the need."
Realising her mistake almost immediately, Ms Nesbitt sent two subsequent messages of apology and did not attend for work the following day. Ms Nesbitt also did not complete a task required for the board meeting on 14 January 2014.
Having not returned to the employers office between 13 to 17 January 2014, her employment was terminated on 17 January 2014 sating the Board considered the matter on the 12th and made a finding of gross misconduct.
Abandonment of employment:
Commissioner Cloghan found that while he did not accept Ms Nesbitt's argument that she performed work from home, he never the less found Ms Nesbitt did not abandon her employment.
Effectively this was because on a number of occasions Ms Nesbitt held points of contact with the employer. Such as when she:
- attempted to resolve the matter with the non-executive directors,
- stated she was unable to prepare board packs
- and left documents at the office door.
Abandonment of employment comes into play when an employer is effectively getting radio silence from an employee after attempting to contact them by all reasonable means (Some Awards also have additional rules). Here the employer clearly knew where Ms Nesbitt was and she was in contact with them so abandonment was not an issue.
Gross misconduct:
Being a small business employer, Dragon Mountain was subject to the Small Business Fair Dismissal Code.
Here Commissioner Cloghan considers a few things. The context of the relationship between Ms Nesbitt and her employer, the wording of the text itself and her actions and words used following the text.
Below are a few select excerpts from Commissioner Cloghan showing his reasoning:
To call a person a “dick” is a derogatory term to describe them as an idiot or fool. The word “complete” is used to convey the message that the person is, without exception, an idiot or fool - they are nothing less than a “dick”.
The principal reason for Ms Nesbitt’s dismissal was the text message describing Mr Gardner, the Employer’s Chairman and Managing Director, as a “complete dick”. However, the evidence provided in the hearing indicates that this remark appears to have been the culmination of a “testing” relationship with Mr Gardner.
Ms Nesbitt poses the rhetorical question of how the Directors of the Employer describe an “accidental, out of context text message as gross misconduct.” Accidental or not, what matters is the content of the text message. In view of the deteriorating working relationship, I consider the Employer had reasonable grounds to believe, that Ms Nesbitt considered Mr Gardner a fool or idiot.
Ms Nesbitt assumes that having called her boss a fool or idiot she is able to reformulate its consequences by considering it acceptable to apologise (by text), provide implausible reasons for calling Mr Gardner “a complete dick” and go to third parties and seek that they not speak to her boss, before they discuss the text message with her. I mention these matters, because the Employer was aware of them and they should be considered, in whether Mr Gardner’s believed the conduct was sufficient to justify immediate dismissal.
This case shows the importance of the employment relationship and how that importance is arguably heightened in smaller teams, in this case two people. Ms Nesbitt's choice of words was carefully analysed by the Commissioner including her actions following the text in forming a view of the relationship. This obviously works both ways and careful wording of letters and following of procedures is just as important for employers.
For another opinion, CCIQ has a write up here.
