Abandonment, small business employers and a very poorly worded text message

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.

Don't go shopping for employees when you're hungry!

Ben Eubanks, from Upstart HR did a quick audio review of a book called "Red Flags: How to Spot Frenemies, Underminers, and Toxic People in Your Life" on a recent HR Happy Hour Podcast and did so through the lens of a HR practitioner (although this is not an HR book).

Ben raises some interesting thoughts and got me pondering. I'l quote some of his review below.

1.
"We all know the advice we shouldn't go shopping when you're hungry so why are we looking for employees to solve problems only when we really get desperate?"

Interesting point. Being in HR I've seen plenty of cases where managers are trying to fill gaps in their team and lose track of time. It can be very easy to overlook how much time a recruitment process can take up. One has to consider evaluating business needs, advertising, shortlisting, synchronising with panel members and applicants for interviews, debriefing and discussions on suitability and negotiation with the preferred applicant. After all that you may have to wait another 4 weeks before they can walk in the door ready to work.

I appreciate sometimes we are sprung with a termination or resignation and time is never a luxury however it got me thinking; how many managers have crisis plans for their team if they suddenly lose a critical FTE or two?


2.
If you want to know about someone at a deeper level the book discusses the FLAG acronym and Ben considers these a useful tool to help build questions around in recruitment.

Focus - What do they focus on?
Lifestyle - What are their lifestyle choices?
Association - What are the types of associations they make with other people?
Goals - Consider the goals people have.

For me these are the elements that can separate a good candidate from a star candidate. People that tick these boxes well are the candidates that take a professional and personal pride in building their brand and will be able to sell themselves articulately beyond the confines of the role. Who do they network with? How do they build their skills? How have they built their career progression around adding value to organisations?

I would imagine elements of this could be drawn out through psychometric screening and others through interviewing and seeing who can bring the 'answer plus' responses.


3.
"The worst people aren't the ones that look bad right away. We naturally shrink back from those kind of people. The worst ones are the ones that look great just before they attack you behind your back."


Not sure if I agree with Ben's take on this one. In the personal, social context in which this was written I can see the point however in the workplace context (unless your talking about the 'corporate psychopath') I would argue employees with fundamental flaws tend to filter themselves out easily with good recruitment processes.

I'll take it then that this quote is pointing to poor recruitment practice. I.e not having behavioral questions, not identifying STAR answers, not following up on matters of concern and not investing the time needed to actually identify a great candidate.

I'll put extra emphasis on the last point there. I've run into recruiting managers that are happy to spend a surprisingly small amount of time on selecting the best candidate. I'm talking a single 45 minute interview, no phone discussion and no second round.

I like to point to the example of a business plan to highlight my concern with this approach. Lets assume someone wanted to propose a project that would cost approximately $300,000 and run for 4 years. I would expect a robust plan, discussion and evaluation of tenders before making the call. No right minded manager would sign off after 45 mins of thought.

However when it comes to employing someone on a 75k salary, who may well stay with the organisation for 4 years, the view the value of the recruitment process for some can be dramatically less. And lets not forget, unlike a faulty product, you can't just ask for a refund!

How can HR facilitate innovation?

I listened to an interesting podcast recently from the CYA Report team - "How HR is Killing Innovation with Hitendra Patel" Sure the title is a bit sensationalist, I personally don't think HR is killing innovation but poor HR certainly can.

Hitendra Patel is Managing Director for IXL Centre, an innovation consulting firm among other interesting positions such as Professor of growth and innovation at Hult International Business School.

There are a few thoughts and quotes from Hitendra that I'll draw out and discuss. It sounded like Hitendra was calling in via phone rather than in studio which made it difficult to catch each word however i'll do my best to capture Hitendra's statements when quoting him (apologies if this isn't a direct word-for-word).

Organisations tend to have people who fall into two categories; employees who diverge in their thoughts and employees who converge in their thoughts.

Staff who diverge tend to bring new ideas from outside the organisation into a discussion and are quite comfortable (and even enjoy), conversations taking creative twists and turns as ideas are explored. This could be sparked from an article they read, a new website they discovered or a fresh experience they had over the weekend.

Staff who converge tend to enjoy structure and focus. This can be formulating lists, plans and clearly executable action items on next steps. You might see them frustrated with meetings that lose focus or take too long and may actively cut them short to bring things back on track.

"We need the person who diverges, because those sort of people look beyond the boundaries of the organisatoin for dots, new dots, new ideas and eventually you'll need more dots than the dots that exist in your company but you'll eventually have to connect the dots. 

The person who converges doesn't like that space as much and will compress it but the person who converges is necessary because sometimes we do have to shut up and move forward and this can bring discipline to the process. Put those two people in the same room and we will have a fight but we have to teach each other how we will work with each other to collaborate." - Hitendra Patel

It's about building an organisational culture that allows both traits to co-exist and add value to the organisation in their own way; the people who create the dots and the people who connect them. Hitendra rightly points out we have a habit of hiring people just like ourselves and so it's important to make a conscious effort to consider if the organisation has a healthy balance to stimulate innovation (and make it stick!).

Innovation is about an experimentation cycle and iteration cycle

Experimentation cycle

This cycle is where an individual innovates and tries multiple different approaches. Think of a scientist or engineer who might not know exactly where the answer lies and so will test several options at the same time to see where they lead. This will inevitably lead to failures but that's the point of the experimentation cycle.

Hitendra talks about how many organisations stifle innovation by punishing failure, rather than seeing it as part of the experimentation (i.e. learning) process.

Iteration cycle

This is when a wining idea or process is found and resources are then spent on a continuous improvement initiative. This is a standard process within organisations as they look to streamline processes, refine procedures etc. However an iteration cycle without an experimentation cycle can open the risk of people barking up the wrong tree to begin with.

"When we look at most other functional jobs within companies, sales marketing, operations - we only give people one chance to do their work. We don't design in multiple cycles of experimentation and when you don't do that your staff are only going to take low risk and only do things that are 'right' or what you have done yesterday because you have not designed in opportunities for learning." - Hitendra Patel

Overly prescriptive position descriptions stifle innovation

This was an interesting point because in my experience position descriptions tend to have a surprisingly small impact on actual work performed. All too often I have encountered PD's covered in proverbial cobwebs reflecting a time and place sometimes years back. I'll assume then that here Hitendra is more so referring to an organisational culture that builds strictly defined position limits.

People need room to move, grow and change. To look beyond their day job and ask 'What's next?' 'What if?'. As mentioned above, if employees always do tomorrow exactly what they did yesterday they're not going to innovate. There's a useful metaphor mentioned in the interview where Hitendra talks about basketball players - given their experience they don't have to expend all their mental energy dribbling the ball (representing their day job). They instead focus on who they will pass the ball to, where they will play the court, the next decision they will need to make - future focused.