Unfair dismissal, or not?
Accidental sending of racist texts messages via a work WhatsApp chat, worthy of dismissal? Perhaps not.
In Bajelis v Reserve Bank of Australia [2020] FWC 3740, Mr Bajelis’ applied for an unfair dismissal remedy after his employment was terminated following his accidental sending of racist text messages to a work WhatsApp chat. Just after three minutes of sending the messages, another group member responded “I don’t feel that this is a very appropriate thing to say or very polite”, and then within four minutes of sending the initial messages Mr Bajelis had realised what he had done, deleted the messages from the chat. He also apologised, including stating: “I’m sorry to anyone who was offended”.
Subsequently Mr Bajelis’ employment was terminated one month later following an internal investigation. The letter sent to him by his employer advising his dismissal was for the following reasons:
• because of the fact the messages were sent;
• because a number of employees found the comments offensive; and
• because this fundamentally undermined Mr Bajelis’ ability to have an ongoing working relationship with his colleagues.
Mr Bajelis applied to the Fair Work Commission and Deputy President Cross found that there was insufficient evidence to support the dismissal based on the reasons provided by the employer. Deputy President was:
• satisfied that the evidence supported there were only two employees who were offended, and one of these only found the messages to be impolite, which was less serious than being offended by the message.
• not satisfied that there was any evidence that Mr Bajelis sending the messages had any impact on his ability to have a productive ongoing working relationship with his colleagues in the future.
The end result? Deputy President ordered that Mr Bajelis be reinstated to his position and be compensated for the time between his dismissal and reinstatement date.
The lesson, it is so important to ensure that there is sufficient evidence to support an employer’s decision when it comes to dismissal. Evidence should be factual, specific, and balanced. Anything less could leave you exposed to legal risk, as it did in this case.
If you have been dismissed, or considering dismissal, please contact us for a confidential discussion.
