Termination upheld for employee engaging in abusive out-of-hours conduct

A Commonwealth Bank (CBA) employee who was terminated for sending abusive text messages to his manager has been unsuccessful in claiming that his termination was unfair because the text messages were sent outside of working hours.

Background

The manager received more than 50 messages from the employee in the early hours of the morning and late at night over 6 days in November and December 2024. Initially, the manager dismissed the texts and said that she had “not taken anything personal” and was “fine” to keep working with the employee. However, as the messages became more aggressive the manager explicitly requested that they stop.

Despite this request, the employee responded with a laughing emoji and sent an additional 30 messages. Commissioner Sarah McKinnon found that some of the messages were threatening, and others were “extremely disrespectful”, displaying a clear disdain for the manager’s abilities and expressing a desire for her to lose her job.

The relationship between the employee and his manager had become strained due to various work-related issues, including scheduling conflicts, an overpayment issue, and a failed transfer application. The employee blamed the manager for these issues and alleged that she had ‘torpedoed’ his transfer application. He also lodged a grievance against the executive manager for his “amusement” reflecting the strained relationship with the CBA.

The CBA had directed the employee to cease contacting the manager while the employee’s complaint against her was investigated, however, the employee disregarded the direction and said that because “[s]he is my boss I can copy her in work emails until I no longer report to her”. Commissioner McKinnon stated that this was insubordinate and incorrect.

Following his termination for continuing to send inappropriate text messages and emails despite being directed not to contact his manager, the employee argued that his dismissal was in response to making a complaint, and maintained his belief that the CBA could not subject him to disciplinary action due to out-of-hours conduct. The Fair Work Commission (Commission), however, looked toward previous decisions of Rose v Telstra, and Ventia Australia v Pelly, which allow for dismissal based on out-of-hours conduct where the conduct significantly impacts the employment relationship, or is sufficiently connected to the employee’s employment.

In McManus v Scott-Charlton, the Federal Court found that out-of-hours sexual harassment of a colleague was connected to the work relationship. Commissioner McKinnon found that even though the harassment in the CBA case was non-sexual and in the private sector, the employee’s conduct was possible only due to his employment, noting he was only privy to the manager’s contact details because of his role at CBA.

The Commission found that it was obvious that there was a clear connection between the employee’s conduct and his employment, and that the messages were deliberately sent out-of-hours because “this was the only time [the manager] would respond”. The messages also demonstrated that the employee would not continue to meet his obligations as an employee in the context of his role and reporting structure. Commissioner McKinnon found that there was “no context outside of work in which the messages could have arisen”, they were considered “likely to cause serious damage” to the employment relationship, the CBA’s interests, and likely to harm the manager.

While the HR team’s handling of the employee’s concerns was criticized for causing unnecessary distress, it did not mitigate the severity of the employee’s conduct. Commissioner McKinnon determined that the employee’s behavior was a valid reason for dismissal and that the CBA followed a fair process in relation to the dismissal. Consequently, the Commission dismissed the employee’s application.

Lessons for employers

From an employer’s standpoint, this case underscores that out-of-hours conduct may still provide a valid reason for termination where the behaviour is closely linked to the employee’s role and has a significant impact on the employment relationship.

Additionally, this case illustrates that employers must address and manage psychosocial risks effectively, which includes taking action against conduct that could harm the well-being of other employees. While the HR team’s handling of the employee’s concerns may have contributed to the strained relationship, it does not excuse or mitigate the employee’s inappropriate and threatening behavior.