Texting Afterhours ends in Termination of Employment
In the case of Ambrose v Moolarben Coal Operations Pty Ltd  FWC 3899 an employee was dismissed after sending a co-worker an obscene image and comment to him with a mobile phone after work hours.
In July 2013 the employee had been working at the coal mine for about three years when he received an official warning noting that behaviour was against the company’s harassment creed. In August 2013 the employee sent the co-worker the mms at which point the co-worker complained to his employer and the police. After a disciplinary process he was dismissed.
The employee complained to Fair Work Australia claiming that the dismissal was harsh, unjust or unreasonable citing a number of reasons including that the conduct was not sufficiently connected to the employment relationship to warrant disciplinary action.
The Fair Work Australia rejected the arguments, stating that the mining company’s creed and its bullying and harassment policy clearly prohibited such conduct. Fair Work Australia found that the company made all employees aware of the policies and had provided training on them. It went on to say that the employee has been warned about inappropriate behaviour and there had been a clear breach of policies.
What to learn
It goes without saying that sending an obscene text messages to a work colleague is not a good idea with or without explicit policies prohibiting such behaviour. The mining company ticked all the right boxes by having the policies in place that enabled them to discipline the employee. They also effectively put into practice the policies to successfully defend a Fair Work Australia claim.
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