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Is Sending Abusive Out-of-Hours Texts Grounds for Dismissal?.

We found out today that the Fair Work Commission (FWC) has supported the Commonwealth Bank’s (CBA) decision to terminate a customer engagement specialist who claimed he could not be disciplined for sending text messages to his manager outside of working hours.

Over a span of three days, the specialist sent over 50 text messages to his manager during early mornings and late evenings. Commissioner Sarah McKinnon deemed the messages to be “extremely disrespectful,” with some of them being threatening in nature. The manager had clearly indicated that the messages were unwelcome and requested that they cease.

The specialist argued that the CBA had unfairly dismissed him for voicing complaints about his manager and claimed that his messages were misinterpreted. He maintained that he could not be penalized for conduct occurring outside of work hours.

In her ruling, Commissioner McKinnon cited previous cases in which employees were dismissed for out-of-hours behavior, emphasizing that such conduct must be likely to cause serious harm to the employer-employee relationship or adversely affect the employer’s interests.

The CBA’s conduct policy mandates that employees treat one another with respect and courtesy, explicitly stating that unacceptable behaviors include “offensive, belittling, abusive, teasing, or threatening conduct.” The Commissioner found this policy to be reasonable, particularly in relation to out-of-hours behavior that directly pertains to work and could result in psychosocial risks for employees.

Commissioner McKinnon concluded that the messages posed a significant risk to the employment relationship, harmed the CBA’s interests, and could negatively affect the manager. She determined that the specialist’s actions provided a valid basis for dismissal and that he was afforded a fair process, ultimately rejecting his claim of unfair dismissal.

Key Takeaways

Certain out-of-hours conduct may be deemed work-related, potentially justifying disciplinary action or dismissal if the behavior:

  • Is likely to cause serious harm to the employer-employee relationship,
  • Damages the employer’s interests, or
  • Is incompatible with the employee’s duties.

These considerations should guide decisions regarding the classification of out-of-hours conduct as work-related and whether an employer may pursue disciplinary measures against an employee.

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