By

Mike Toten

Mike Toten is a freelance writer, editor and media commentator.

The Fair Work Commission (FWC) has held that when a manager sent over 200 messages to an employee abusing and threatening him, it ended the employment relationship. This was even though the company director did not want the employee dismissed and even though the messages were sent outside working hours. The employee has now lodged a claim of adverse action against the employer, which is awaiting resolution.

Facts of case

The employee was a delivery driver. After a workplace injury put him off work and led to a workers compensation claim, he asked that the employer put all future correspondence in writing to avoid misunderstandings. After he ignored two phone messages, his general manager sent multiple text messages and messages via Facebook Messenger.

They included:

  • that the employee would soon be sent “his last mail”
  • photos of the driver with links to songs that included “Liar Liar (Burn in Hell)” and “Bullsh*t”

After the employee next day told Workcover he had been dismissed, a director of the employer sent him a “suitable duties” document proposing a return to work and asked him to sign it. The employee ignored both it and the director’s follow-up phone call. But a week later, after he had received about 200 spam text messages from the general manager, including one advising him to “lawyer up” and others implying that he had self-harmed, the employee complained to the director. The latter emailed a reply, apologising for the manager’s behaviour, claiming he was unaware of it, and stating that the employee had not been dismissed.

The employee was stood down after lodging his general protections claim.

Decision

However, the FWC found that the general manager had authority to act on behalf of the employer, and the director was not involved in day-to-day operations. The manager had hired the employee and allocated his work tasks. Even though the messages were sent outside normal working hours, they were connected to employment because they referred to his workers compensation claim, and at the time there was no other link between the employee and his job.

Even though the director did not want the employee dismissed, the general manager’s conduct had already ended the employment relationship by making it untenable. Therefore, the employee was dismissed.

The FWC has listed the matter for conference.

What this means for employers

This case is not yet resolved, however, it is possible to make the following points:

  • The general manager had sufficient authority to dismiss the employee, and his actions were sufficient to undermine the employment relationship and end it. Had he not sent all the messages, the employee would have remained employed. The director did not make his “not dismissed” claim until after this had already happened.
  • The general manager’s messages were sufficiently connected to employment because they referred to the workers compensation claim and caused serious damage to the employment relationship. As the commission said, it "was clear" the general manager's actions "resulted in the applicant's continuing employment being untenable".

Read the judgment

Joel Amey v Organic Life Distribution Pty Ltd [2023] FWC 2892 (13 November 2023)