Legal

Hairdresser wins unfair dismissal claim after Facebook Messenger conversation with boss “spiralled out of control”

Fay Calderone /

In a decision before the Fair Work Commission last week, a hairdresser was held to have been unfairly dismissed after an exchange with her boss over Facebook Messenger where he aggressively turned on her.

The employee (JLM) and her boss (CT) regularly conversed outside of hours on Facebook messenger. On 6 December 2017, however, their exchange “spiralled out of control”.

Statements and submissions become very simple to prepare when the entire case is evidenced in writing in exchanges such as this. In this case, the employer did not participate in the proceedings or defend the case. JLM’s evidence stood unchallenged. Fair to say, CT had said enough.

An unfortunate exchange

The conversation kicked off with a message from CT after 9pm when JLM didn’t answer her phone while putting up Christmas lights that said:

“Hey do I have a 9am app tomorrow…Still awake but won’t answer, have you looked at tomorrow or not. Remember I have only offered I, have yet given ur place. And now I have 2 more I will not need you. U need to make a choice you are either with me or against me. I will not take silence anymore! And I do not need to. I will sever you as I have done to them!”

As the exchange progressed it transpired CT was suspicious about JLM maintaining a relationship with a competitor as he demanded, “You have had a voice for to long, now you will here mine! Cut them off or you will not have a job with me!” He went on to say: “I was shown a vision of you leaving me! I am sick of this shit. As I said you r either with me or against. And I will not be silenced anymore! The keys …”.

Despite reassures from JLM that she was “not going to leave” CT persisted that she was second-guessing him and said he needed to know he can trust her. Eventually JLM snapped back with:

“Yeah and that’s great, I appreciate it. Awesome! So y r u having a dig at me. That’s the 2nd time now you’ve said you’d just get rid of me for someone else. I f***ing hate that! And I will be speaking to u about this tomorrow because it makes me furious! YOU CAN TRUST ME. I have done everything I can for u and the salon. This conversation is a f***ing joke.”

CT took exception to the perceived insubordination and tried to put JLM back in her place:

“…you try to have control over me! Because you think you know better! But I KNOW BEST. I HAVE BEEN AROUND LONGER AND HAVE ACHIEVED MORE! YOU WILL RESPECT ME!…All these things make me wonder if I should keep you! Where is your heart my girl! Rid that attitude you have. As I will always be fine but you how ever are in question.”

The exchange “stressed out” JLM and she told CT she would not come in the following day, to which CT responded:

“Wat eves your down fall. Good luck in your new job if you can find one. Which you won’t given my presence Xo I will cut you from my fold Good luck girl as u will need it Haha remember central caost no one will hire you as you r! Mwah! Keep fighting as you will meet ur end”

JLM then replied with: “I quit. I don’t need to put up with your shit. I don’t need your luck. I can stand on my own two feet thank you very much.”

As they bid each other farewell, CT clearly has to have the last word and finishes the exchange with the following bizarre and threatening monologue:

“After I’m finished with u…Good bye looser… I thin another has abandoned their employment So it shall be Oh and don’t come for me as I will break you … Literally As I have done to other before…haha Xo

Everything will fold for you and I will stand and watch You r dead to me! Nothing more! You will suffer as they will! And Lee there is nothing you can do about it! My brother will be here soon and he out ranks you as a detective! I will have justice and you will receive my wrath! U pieces of shit! I will make you suffer! And there will be know where in town you shall enjoy as my family owns it! You will hang your heads as you will be shunned. My present to you. Xo

Come after me weight lifter! I will break you! Your bones I’m talking! Depart from me as I will destroy u! Everything I have offered will be taken away from you and you will join the team that have been destroyed! You are nothing and will be nothing! Have fun finding a job because u won’t get one! I bought mine wat can you do with urs. Loose r I still to fight for you idiot. Arrgg You f***ed up. And I have to fight for u loose r. My god Arrggh U r nothing!! I can’t wait for ur arrival I shall destroy you! And you will be shammed! Xo

Haha I will win dumb c**t. Join ur siblings as I shall prevail. U will be nothing haha Cry as you will cray forever. Take ur shit u ugly piece of crap because that is all that you r. And … will be nothing else the horrid piece of crap. Mwah u r nothing and I will make u nothing you piece of shit. Welcome ur new status.”

Fair Work finds regular chat spiralled out of control

The Fair Work Commission found that although JLM said “I quit” during the course of the exchange, it was only after CT said, “Good luck in your new job if you can find one. Which you won’t given my presence”, such that the termination was at the instigation of the employer.

Commissioner Riordan speculated that the employer’s reason for the dismissal was a result of some type of “conspiracy theory” in relation to alleged discussions with current and former colleagues. The Fair Work Commission decision noted the exchange took place over a social media platform late at night and the sobriety or capacity of either individual during the recourse was unclear.

Nevertheless, what was clear was that the employer did not give the employee a reason for the termination or an opportunity to respond as is required by the Fair Work Act. The Commissioner observed that the exchange “escalated from a simple inquiry to an unfortunate conclusion” or as later referenced, a “regular chat that spiralled out of control”.

Unsurprisingly, JLM didn’t seek reinstatement. As it turns out, she did get another job and pretty quickly over the Christmas break. She started her new job on 4 January 2018 and the Commission made an order that the employer compensate her for the period she was unemployed following her summary dismissal. On this basis an order was made that the employer pay JLM four weeks’ pay plus her statutory superannuation.

It seems CT got off pretty lightly given the threatening tirade he unleashed on his employee. Nevertheless a small compensation award seems a drop in the water relative to the detrimental effect a published judgement like this has on brand and reputation, and ever more so in a small town. That said, mainstream media reports this week indicated the hair salon is listed online as permanently closed, and the phone number has been disconnected.

The moral of the story?

Anything you say in text messages, instant messaging or social media platforms is evidence in writing that can and will be used against you in a court of law (or the Fair Work Commission). Choose your words wisely and don’t write on such platforms anything that you wouldn’t or couldn’t legally and comfortably say in a meeting with an employee face to face.

This article was first published on LinkedIn. Read the original article

NOW READ: Melbourne business ordered to pay worker $20,000 for firing her after she resigned

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Fay Calderone

Fay Calderone is a partner in the employment and workplace relations team at Hall & Wilcox in Sydney.

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