Is it lawful to dismiss someone based on private messages circulated in a work group chat?

Is it lawful to dismiss someone based on private messages circulated in a work group chat?

Texting is a part of our daily lives, and many businesses now rely on group messaging services to communicate with their staff. So, what happens if an employee mistakenly sends an inappropriate message to a group of their colleagues that was intended for a private recipient?

In a recent decision by the Fair Work Commission, Deputy President Cross held that this would not be a valid reason for dismissal. This was found in the matter of Bajelis v Reserve Bank of Australia which concerned an employee who sent a text message, intended for his wife, to one of the employer’s WhatsApp group chats. The correspondence read, “Asians have no interest in understanding, they are content to just learnt the formulas… that’s why they can’t solve problems”. As a result, the employee was terminated, and while the Commission agreed with the employer that the message was racist, they stated that this alone did not provide sufficient grounds to dismiss him. 

In his reasoning, Deputy President Cross considered Rose v Telstra, a case which held that the conduct being complained of by the employer must be of such gravity as to indicate that the employee has rejected or repudiated their employment contract. This requirement was not met in the current dispute. It was found that the messages were a technical and unintentional breach of the employer’s code of conduct and behaviour policy. As such, given the employee’s actions were unwilful, it could not on its own justify his dismissal. On this basis, Bajelis was awarded reinstatement to his role. 

Simply put, Deputy President Cross’ decision appeared to focus on the intentions of the employee and concluded that since it was accidental, it could not amount to a breach of the employer’s workplace policies, nor justify a dismissal.

If you believe your employer has wrongfully acted against you because of a private message that was circulated on a company group forum, please contact us on (03) 9650 4555.

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