When considering whether to dismiss an employee, context is everything. In a recent case, an employee has been reinstated after he was dismissed for sending a text message to a colleague referring to his manager using highly inappropriate language and threatening to punch him.

Reinstatement was ordered because the decision to dismiss the employee was found to be harsh, unjust and unreasonable given the context surrounding the dismissal.

Harsh, unjust or unreasonable

In examining the context surrounding the employee’s behaviour, the Queensland Industrial Relations Commission (“QIRC”) considered whether the dismissal was harsh, unjust or unreasonable (this is the same standard for unfair dismissal cases heard by the Fair Work Commission). After examining the scenario holistically, the QIRC found the dismissal was:

• harsh because the employer’s restructuring created a “pressure cooker” work environment, the employee had worked for the employer for over six years with an unblemished record and there was a significant economic impact to the employee;
• unjust because the disciplinary process followed was in violation of the relevant agreement by;

1. 1. not giving the employee 24 hours’ notice of the meeting;
   2. not informing the employee of his right to have a representative present; and
   3. not providing the employee details of what the meeting was about and why his attendance was required;

• unjust since the initial proposed disciplinary action was a written warning and this was only increased following a written response from the employee (and not based on the initial allegations, which did not change); and
• unreasonable since the text messages were uncharacteristic of the employee, it was a vent (rather than intended action), he demonstrated remorse and was willing to change.

While the QIRC noted that the behaviour was certainly inappropriate, it found that when viewed in context, a written warning was a more proportional and appropriate response by the employer.

Why reinstatement was appropriate

Reinstatement has long been the default or “primary” remedy for unfair dismissal. In determining whether reinstatement was appropriate, the QIRC focused on trust and confidence, finding that while re-employing might cause difficulty or embarrassment, the context of the dismissal did not make restoration of the employment relationship impracticable.

Takeaways for employers

While employers might be shocked by such employee conduct, this case is a reminder that to avoid a dismissal that is deemed to be harsh, unjust or unreasonable employers should consider:

• the whole character of the employee and whether it is likely the behaviour was a “one-off slip up” or an ongoing risk;
• the nature of the employee’s environment as potentially giving occasion for or exacerbating reasons to behave inappropriately; and
• whether the employment relationship has lost trust and confidence by a sound and rationally based assessment.