Sending an employee email and text messages that contain threats and abuse is not acceptable even if the email and text messages contains a reasonable request to reveal the address of a cash job undertaken by the employee after-hours using the tools and equipment of the employer. Using invectives and calling the employee names and threatening to malign the employee’s reputation on the internet and to do him harm shows that the termination of the employment was harsh, unjust and unreasonable.
In the case of Jordan Lamacq v Smerff Electrical [2019] FWC 181 (14 January 2019) an apprentice electrician was first hired as a casual trade assistant on 23 June 2017 by a small business employer. The trade assistant began a full-time apprenticeship in September 2017 which, if continued, would have been for a period of 4 years.
The business had contractual jobs for electrical installation mostly in the summer. In the winter, because there were no jobs, the employer allowed the electrician’s apprentice to take on the occasional cash jobs for his friends or family especially in cases of emergencies. In February and March 2017, the employer allowed the apprentice to work for him two days every fortnight.
In May 2016, the employer found evidence that another former employee had been using the company gas card to fill up with diesel when none of the employer’s work vehicles used diesel. He also found evidence that the former employee’s GPS tracker showed that he was working for cash with a regular customer of the employer. Since the former employee was friendly with the electrician’s apprentice, the employer suspected that the former employee and the electrician’s apprentice worked together at that cash job in March 2018.
The employer then, in an email and in several text messages, asked the electrician’s apprentice to supply the address of the cash job they did. He then asked the apprentice to supply the current address and employment address of the former employee. The language in the email and in the text messages contained racial and sexual slurs (the employer called the apprentice and the former employee “mother-fucker” , “cunt” , “fat fucking germ”). It also contained a veiled threat often used by ultra-right conservatives: “To make a race horse pull as much as a plow horse you can only cripple the plow horse. To make a plow horse run as fast as a racehorse, the only way is to cripple the race horse.” At the end of the email, the employer gave the apprentice an ultimatum to supply the information demanded of him or be dismissed.
The apprentice was willing to give the address of the cash job they performed together – he claimed that he had informed the employer of all the cash jobs he undertook during the winter, anyway, out of respect. What he felt he had no right to do was to divulge the current address and current employment of the former employee as it may violate the former employee’s privacy. He was summarily dismissed on 16 May 2018.
He then filed a complaint for unfair dismissal. The employer sent the apprentice another email where he called the complaint an “extortion attempt” to which he will retaliate by publishing disparaging comments and derogatory posts about him so that it will be “number 1 page 1 of google search results” for the apprentice. The website of the employer contained derogatory posts about persons who offended the employer including judicial officers.
The Fair Work Commission considered the casual employment of the apprentice during the winter (1-2 days every fortnight) to count toward his period of service such that he served the minimum employment period required to file an unfair dismissal complaint. A causal employee is regularly employed during the period of his casual employment if he had a reasonable expectation of continuing employment with the employer. There is no need to show that his hours of work were regular (eight hours) only that there must only be some pattern of repetition even if the work is not frequent, often, uniform or constant. Thus, his work of 1-2 days every fortnight showed a pattern of regular employment.
The apprentice was dismissed at the initiative of the employer because the employer’s conduct showed the intention of bringing the apprentice’s employment to an end. The language used by the employer in his email and text messages show that it is inconceivable for the apprentice not to conclude that his employment relationship had been ended by the employer.
The dismissal was inconsistent with the Small Business Dismissal Code: there was no notice or warning given, the employee’s conduct was not sufficiently serious to justify immediate dismissal, and the employer did not identify the reasons for dismissing the apprentice. There is no factual basis for the employer to believe that the apprentice had any knowledge of the theft committed by the former employee or that the apprentice committed acts of theft, himself. Refusing to provide the information demanded cannot be the basis for an allegation of serious misconduct.
All the investigations conducted by the employer against the apprentice was carried out after he had already been dismissed and in preparation for the hearing of the complaint. At the time of the dismissal, the employer’s belief on the misconduct of the apprentice was not based on facts or on reasonable grounds. The language of the text messages and the email show that the employer had already decided the guilt of the apprentice and his decision to dismiss the apprentice will only be changed if the apprentice supplied the information about the former employee. He was assured that his “theft” would be overlooked if he supplied the information. The apprentice was awarded the sum of $11, 400 for 12 weeks’ ordinary wages.
Have you received offensive and threatening email and text messages from your employer? Are you wondering if you have been unfairly dismissed from employment? Was the termination of employment policy at your workplace followed by your employer? Call any of our employment lawyers today for a consultation.
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