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Sacked: romance implodes in 'spectacular fashion'

FWC has refused to reinstate the sacked employee.
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Sacked: romance implodes in

Sacked: romance implodes in 'spectacular fashion'

1 October 2020

By Marise Donnolley

The Fair Work Commission has refused to reinstate an employee who was sacked after a workplace romance imploded in ‘spectacular fashion’.

Although the dismissal was unfair, the commission said reinstatement ‘would be a wholly inappropriate remedy in light of the toxic relationship between the parties’.

Compensation was also not an option “due to the effect on business of the COVID-19 pandemic”.

Facts of the case

The couple had been involved in an intimate relationship for about seven years. At the time of dismissal, the woman had been working in her partner's business for 15 months.

The Commission heard the relationship unravelled in March this year. The employee was upset with the company director because he had spent the weekend with another woman. The director was upset about her reaction to his weekend actions and was also grappling with the consequences of a possible business shut down due to the pandemic.

He wrote to employees on the ‘WhatsApp’ about the likely need to work from home if the business was shut down, and the employee posted that she would ‘not bother’ to come in the next day.

The director became enraged at what he saw as her disrespecting him in front of his employees. A prolonged and angry text message exchange ensued, encompassing both resignation and the employee being “fired”.

The director told the employee to ‘f*ck off’, twice called her a ‘c*nt’ and complained about her work performance.

At one point in the exchange the employee said: ‘We are done. I warned you and you proceeded to call me a c*nt again. Seeing as I do nothing then no one will have to do the jobs I don’t do.’

As the exchange petered out and it became clear that the employment relationship was at an end, the director told the employee to take the matter to court if she was unhappy about “his decision”. She filed this application seven days later.

Was she dismissed?

Commissioner Sarah McKinnon found the employee had been summarily dismissed and it was not consistent with the Small Business Fair Dismissal Code.

The text exchange disclosed the following reasons for dismissal:
  1. Disrespecting the director on the group WhatsApp chat
  2. Refusing to apologise for the WhatsApp chat post
  3. Not attending for work on the Monday
  4. Argumentative and unprofessional conduct, and
  5. Asking for a contract for work as ‘blackmail’.

The commissioner said it was clear the director 'believed these matters warranted immediate dismissal. His belief was not a reasonable one. At best, the post on the group WhatsApp warranted a warning for bringing personal matters to work – a behaviour it seems [the director] also exemplified on occasion. [The employee's] refusal to apologise for the post and any of her conduct in the text message exchange that was argumentative or unprofessional must be seen in light of [the employee's] repeated offensive and demeaning criticism of her. He too refused to apologise to [the employee]. In the circumstances, [the employee's] conduct was a reasonable response to [the director's] appalling conduct. It was not conduct that justified any reasonable belief that immediate termination was an appropriate outcome in the circumstances."

The commissioner said she was unable to find any valid reason for dismissal related to the employee’s capacity or conduct.

“I accept that she was sulking about [the director’s] weekend activities with another woman,” the commissioner said.

“Why that prompted such an angry response from [the director] is hard to fathom. Her post on the WhatsApp chat as well as some of her comments to him over the text message exchange were less than desirable in a workplace context, some of them very much so. The text message exchange must be read in the context of a long-term personal relationship that was contemporaneously imploding. [The director’s] contribution was even worse. As [the employee’s] employer, he held the balance of power. He knew it and aggressively sought her submission.”

The commissioner noted that the evidence was "but a snapshot in time. It does not reflect the totality of a relationship that endured over many years nor the history that informed the behaviour of both [parties] at its sorry demise. What occurred would never be acceptable in an ordinary workplace context, but this was not that. Even so, as her employer, [the company director] had a duty of care to [the employee] and it is regrettable that this appears to have been forgotten in his haste to bring the arrangement to an end."

The commissioner refused to order reinstatement or compensation.

Instead, she said: “In time, the dust will settle and each will be left with a public record of matters that are highly personal to them, accessible to anyone who wishes to find it on the Commission’s website. That is remedy enough.”

Carol Ray v Priority ERP Pty Ltd [2020] FWC 5072 (21 September 2020)

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