Employee’s out of hours conduct towards his manager justified dismissal
The FWC has upheld a decision by the Commonwealth Bank to dismiss an employee who bombarded his female manager with emails sent outside office hours complaining about her lack of support, frustration for failing to secure a promotion, and questioning her capacity to manage. The emails continued despite her requesting him to stop, as she was becoming increasingly uncomfortable with the ongoing correspondence.
‘DP’ was employed by the Commonwealth Bank of Australia (CBA) as a Customer Engagement Specialist from 15 May 2023 until 15 March 2024.
He was dismissed by CBA because of numerous emails he sent to his manager between 16 November and 10 December 2023 and emails he sent about an unsuccessful job interview between 13 and 19 December 2023. There was no dispute that he had written and sent the emails, nor that the majority of emails were sent in the early hours of the morning or later at night.
Although some of the emails focused on an overpayment and a one-off request to work from home, Commissioner Leila McKinnon noted, “the messages were extremely disrespectful to Ms (O), at times threatening, and made plain Mr (DP’s) disdain for her managerial ability and his desire for her to lose her job”.
At one point, DP sent his manager more than 50 messages over two three-day periods.
Shortly after she commenced receiving the messages, she asked DP to stop, but her request was ignored. Subsequently, she again requested him to stop as she was feeling threatened and that he was harassing her, but again, her request was ignored.
In fact, on 10 December 2023, he responded to her request to stop by replying with a “Ha Ha” (laughing) emoji and proceeded to send 31 more messages.
CBA has a Group Conduct policy that sets out their expectations that employees treat everyone they encounter during their employment with respect and courtesy, including outside of ordinary working hours.
When asked to respond to the allegations that his conduct towards Ms O was unacceptable, he did not meaningfully acknowledge his conduct towards his manager or display any genuine remorse.
DP’s primary submission was that he could not be disciplined for conduct that occurred outside of working hours, such as the forwarding of emails.
However, as Commissioner McKinnon noted, “The messages were likely to cause serious damage to the relationship between the CBA and Mr (P)”… They demonstrated that Mr (P) did not take seriously his duty to treat co-workers with due care … They were sustained, hostile and at times threatening … The content, frequency and timing of the messages had the likely consequence of causing Ms (O) harm”.
Further, the Commissioner highlighted that the emails were related to work, borne out of the working relationship, sent by DP in his capacity as a subordinate, and directed to Ms O in her capacity as her manager.
In concluding the termination was justified, Commissioner McKinnon noted there was “a pattern of conduct by Mr (P) that indicated he was no longer prepared to cooperate with the CBA or to follow its reasonable and lawful instructions, including by complying with the Group Conduct policy”.
The application was dismissed.
DP v Commonwealth Bank of Australia [2024] FWC 2115 (15 August 2024)
For queries about employee behaviour outside of hours, developing relevant policies, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 WAL LAW or via email to dean.cameron@workforceadvisory.com.au
Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.
Ref: 462.0924
