Out-Of-Hours Abusive Conduct Results in Termination

Facts of the case

In this case, the employee had been working as a Customer Engagement Specialist with the Commonwealth Bank of Australia (CBA) for 10 months.

The employee was terminated for sending a series of over 50 text messages to his manager over a six-day period in response to a rostering issue and an overpayment error.

The employee challenged his dismissal, arguing that the messages were misinterpreted and that he did not intend any harm.

He claimed that his manager was "okay with the messages" and that his frustrations stemmed from unresolved pay errors.

Moreover, he contended that the conduct occurred outside of working hours and should not have been subject to disciplinary action.

Findings

Commissioner Sarah McKinnon (the Commissioner) rejected the employee’s arguments, finding that the texts were "extremely disrespectful" and "at times threatening."

She highlighted that the messages demonstrated a clear disdain for the manager’s abilities and a desire for her to lose her job.

The Commission ruled that the employee’s conduct, while occurring outside of regular working hours, was directly related to his employment as the conduct was possible only because of the employment relationship, as the employee 
had obtained the manager’s contact details and knowledge of her working hours through his position at CBA. The messages also created a significant psychosocial safety risk to the manager.

Commissioner McKinnon upheld that the CBA’s group policy which requires “respect and courtesy” at all times was applicable to out-of-hours conduct that was work-related and likely to cause psychosocial risk.

It was also noted that the employee showed no genuine remorse or meaningful acknowledgement of his behaviour, which further justified CBA’s decision to terminate his employment.

Take away for clubs

This case serves a great reminder that:

• inappropriate out-of-hours conduct against workplace policies may be subject to disciplinary action;
• it is the responsibility of employers to manage psychosocial risks in the workplace, including those arising from out-of-hours conduct; and
• employers should have up-to-date policies in place which are clear and communicated to the employees.

A link to this case can be found here.