Warned to stop messaging a co-worker, he kept going and was sacked

What happened

Abdul Soomro worked for Murray’s Australia. In the latter part of 2015 he sent a female co-worker repeated text messages she had not asked for. The Commission found the messages were either ignored or answered negatively, with requests that he stop contacting her.

She made an informal complaint. The matter was raised with Mr Soomro and he was asked to stop. The Commission found he agreed not to interact with her unless it was work related. He later denied being warned, but the Commission preferred the employer’s evidence.

In April 2016 the co-worker received a new bundle of messages, some sent from a landline number under the pseudonym “Yakflyer1”. Mr Soomro denied sending them. She complained to Murray’s, which set up an investigation.

The investigation and the dismissal

On 30 May 2016 Mr Soomro was told the particular allegations and offered a meeting to respond. They included breaches of the company’s policy on equal opportunity, discrimination, harassment, bullying and workplace violence, and dishonesty during the early stages of the investigation.

The investigator took his statement, made findings, and gave him a chance to respond to them. Murray’s then told him it proposed to dismiss him for misconduct and gave him a chance to respond to that too. He attended a meeting with a support person and made his case.

Murray’s ended his employment by letter dated 14 July 2016, relying on findings set out in a letter of 7 July 2016. Mr Soomro applied to the Fair Work Commission, saying the dismissal was harsh, unjust and unreasonable.

The legal test

An unfair dismissal application is made under s 394 of the Fair Work Act 2009 (Cth). To decide whether a dismissal was harsh, unjust or unreasonable, the Commission must weigh the factors in s 387.

The main ones are whether there was a valid reason related to the worker’s capacity or conduct (including its effect on the safety and welfare of other employees), whether the worker was told the reason and given a chance to respond, whether a support person was unreasonably refused, and whether the worker was warned about unsatisfactory performance. The Commission also asks whether dismissal was a proportionate response, or whether a lesser penalty would have been enough.

What the Commission decided

Vice President Watson found that Mr Soomro did send the unwanted messages in 2015 and, on the balance of probabilities, the “Yakflyer1” messages in 2016, which he described as serious breaches of the policy. He also found the dishonesty allegations were established.

It did not help Mr Soomro that some contact happened outside work hours. The Vice President found the contact was clearly unwelcome and had implications for the relationship between employees, so the employer was entitled to treat it as misconduct. There was a valid reason for dismissal, related to his conduct and to the health and safety of other employees, particularly the co-worker.

On procedure, Mr Soomro had been told the allegations, heard at each stage, and allowed a support person. He had also been warned after the first complaint, and his later behaviour was “totally inconsistent with the warning”.

Finally, the Vice President found the misconduct “extremely serious”, especially because he had been warned to stop, and that dismissal was a proportionate response. The application was dismissed.

The appeal

Mr Soomro appealed. He argued that his evidence was ignored, that the Vice President made errors of fact, and that he was prejudiced because the employer filed its material late and an adjournment was refused.

On 6 February 2017 a Full Bench gave him extra time to appeal but refused permission to appeal. Under s 400, permission in an unfair dismissal case is given only if it is in the public interest. The Full Bench found no arguable error: preferring the employer’s evidence was not ignoring his, his representative had cross-examined every employer witness, and, although the Vice President allowed for a further adjournment application during the hearing, his representative did not make one.

What this means for you

If you are an employee, conduct outside work hours is not automatically private. Unwanted contact with a co-worker can justify dismissal where it affects the workplace, and continuing after you have been asked to stop makes it far more serious.

If you are facing an investigation, answer honestly. Here the finding that he had been dishonest in the investigation added to the case against him.

If you are an employer, this case shows what a fair process looks like: clear allegations, a real chance to respond at each stage, a support person, and a decision that considers whether dismissal is proportionate. If you have been dismissed and believe it was unfair, consider getting advice early, because an unfair dismissal application must be lodged within 21 days.