Most of us have days when the boss gets on our nerves (not me, of course; my employers are (a) wonderful people and (b) very likely to be reading this). But if the boss gets on your wick and is hopelessly thick so you can’t take a trick, should you call them a dick? The complete answer, a recent case tells us, is “no”.
The employee in this case was a bit unlucky. She was intending to send a text message to her daughter’s boyfriend, who had been engaged to carry out some plumbing work at the employer’s premises. It seems that she was intending to tell the plumber to mind his manners around her boss, but the text she tried to send him did not say, “Mind your manners around my boss”. What it said, instead, was this:
“Now remember … Rob [the boss] is a complete dick …we know this already so please try your best not to tell him that regardless of how much you might feel the need”.
The problem was that the text did not go to the plumber. Instead, through an example of that technological ailment sometimes referred to as “fat finger syndrome”, the employee sent the text to her boss. With some cases of “fat finger syndrome”, you can plead (or at least try to plead) the “autocorrect defence”. In this case, even that defence looked unpromising.
Instead, the employee tried a different kind of pleading. Having realised what she had done, the employee sent a further text asking the boss not to read the text and apologising. A further text was sent describing the first text as being “taken out of context” (which rather raises the question, “In what context, pray tell, should such a text be taken?”) The pleading fell on deaf ears and the employee was dismissed. Was the dismissal unfair?
The Fair Work Commission considered closely the meaning of “complete dick”. (Such a consideration is obviously long overdue, given that a search of the legal database AUSTLII for the expression “complete dick” returns this case as the only result). The word “dick”, said the FWC, connotes an idiot or fool, and the word “complete” “is used to convey the message that the person is, without exception, an idiot or fool – they are nothing less than a “dick””. The employee explained her use of “complete” by saying that “she lives with young people who put “complete” in front of every second word”. However the FWC completely rejected that explanation, which was completely understandable.
The FWC also rejected the submission that the words used by the employee involved a “light-hearted insult” and instead described them as “a hurtful and unpleasant appraisal”. Accordingly, the employee’s claim was dismissed.
So does this mean that when it comes to your boss, disrespect equals instant dismissal? Almost certainly not. Firstly, the case above involved a small business, so the Small Business Fair Dismissal Code applied to the case. The legal tests to be applied under the Code are quite different to the tests which apply when the employer is not a small business, so care is required applying Code cases to dismissals in larger organisations.
A safer test comes from another FWC decision last year, in which an HR manager of a motor dealership was dismissed after it came to light that she had said of her boss, “he’s called “tosser” by most in the motor vehicle world” (which might also be described as “a hurtful and unpleasant appraisal”). The HR manager won her claim, probably assisted by the fact that (a) the HR manager made the comment in a private Facebook conversation with the boss’ ex-wife and (b) the boss only became aware of the comment by accessing his ex-wife’s Facebook account without her knowledge. Hacking your ex-wife’s Facebook account is not always the best way to ensure a sympathetic hearing at the FWC, it appears.
In considering the matter, the FWC said:
“I do not think discovery by a manager that an employee holds a low opinion of him is sufficient reason to terminate the employment of a long serving employee with an impeccable employment record. In my view more is required, particularly some evidence that the employee’s opinion is having a deleterious effect on the workplace, its employees or the business of the employer”.
So, context is everything. Privately expressed views are clearly different to views expressed by shouting at your boss in an open office. Employers aren’t entitled to be too precious about such matters, but if you are thinking about committing your views about your boss to text message (or social media communication), it pays to be completely, completely, careful.