The Fair Work Commission has rejected an unfair dismissal bid by a transport company manager who allegedly sent threatening emails from his LinkedIn account, which was linked to his position with the company, and spoke to his boss in an “expletive rich” manner.
The employee was employed by Egis Road Operation Australia from October 2013 as the logistics company’s manager of environment, safety and quality.
He was terminated after 11 months in August 2014, after the deterioration of his relationships with several team members and his boss Scott Cain, the operations and maintenance manager of Egis.
Egis gave evidence to the commission regarding a series of incidents involving the manager’s performance and conduct, including using his LinkedIn account to send threatening emails to a person who may have been his ex-partner.
The LinkedIn emails, which Fair Work senior deputy president Peter Richards chose not to publish in his judgment because they were “particularly aggressive and abusive”, specified the manager’s position title and employer.
The recipient of the emails complained to the Egis head office, which prompted Cain to tell the manager his conduct of drawing the employer’s business into personal emails had to cease immediately.
Egis told Fair Work that the manager also gave an “expletive rich response” to Cain’s attempt to manage him through a performance plan, including characterising Cain as “a bastard”.
The transport company dismissed the manager via a letter dated August 25, which included allegations of his refusal to report for duty, failure to perform normal duties and “total lack of respect and use of inappropriate language” directed at Cain.
However, the manager claimed he was the subject of bullying and argued he was dismissed from his employment on a summary basis and denied procedural fairness.
But Richards found Egis had a valid reason for the dismissal because of the manner in which the manager had conducted himself.
“Ultimately, [the manager] may or may not be guilty of the various claims made against him,” said Richards in his judgment.
“But his fundamental and proven failing was in his inability – in a small work group – to conduct himself in a cooperative and civil way, and exhibit the desired suite of managerial traits.”
Anthony Massaro, principal at Russell Kennedy Lawyers, told SmartCompany the manager’s refusal to be civil with other employees and to engage constructively with Egis in regard to performance issues were valid grounds for dismissal, particularly given he was working in such a small business.
“While it was found there were some procedural deficiencies, the commission was prepared to overlook those on the basis [the manager’s] conduct could not fit into the workplace,” says Massaro.
While Massaro says the case is a reminder for employers to follow proper policies and procedures when performance managing or dismissing an employee, he says there is a third lesson for employers raised by the manager’s use of social media, including LinkedIn.
“While it wasn’t determinative here, employees can be held to account for what they publish on social media, particularly where the employer can be identified,” says Massaro.
“If [what is published] is capable of identifying an employer or capable of damaging an employer’s reputation, the commission is more likely to find a connection with the employment, even if the emails or abuse are not work related.”
Massaro says the case is a reminder for SMEs to have solid social media policies in place.
“It is much easier to act in response if they have policy in place that clearly establishes some boundaries around the appropriate use of social media,” he says.
“If you have policies in place, it might make it easier to terminate or discipline an employer sending inappropriate emails on LinkedIn or abusive messages on Facebook.”
SmartCompany was unable to contact Egis Road Operation Australia.
*This article was updated on July 20, 2017.
You can help us (and help yourself)
Small and medium businesses and startups have never needed credible, independent journalism and information more than now.
That’s our job at SmartCompany: to keep you informed with the news, interviews and analysis you need to manage your way through this unprecedented crisis.
Now, there’s a way you can help us keep doing this: by becoming a SmartCompany supporter.
Even a small contribution will help us to keep doing the journalism that keeps Australia’s entrepreneurs informed.