The Case

Hall v Bordignon T/A Northern Myotherapy (2018)

In 2017, Ms Hall’s employer, Bordignon, dissolved its business partnership in a myotherapy clinic. At the time, Ms Hall’s employer asked Ms Hall and the other employees to remain loyal to the business.

Nevertheless, much to her employer’s disapproval, Ms Hall maintained a personal friendship with the former partner. Ms Hall made several Facebook posts in support of the former partner, which upset Ms Hall’s employer. Several heated text exchanges between them followed, including the following:

The employer stating: “What the f**k Sharon we spoke about this the other day yet you still wanna post not her private page her business page!!!!! I’m not calling you tonight coz I would regret what I like saying please don’t come in tmrw I will call you…”

Ms Hall’s response: “So I will take that message as being sacked due to a comment on a wall… I don’t deserve this at all. It is way out of proportion. I need it to be settled tonight… [it] is unfair to make me wait… This is so wrong.”

Later that night, Ms Hall and her employer spoke on the phone. Ms Hall claimed that during this phone conversation, her employer told her not to come back to work. The employer denied this.

Ms Hall did not go into work the next day and posted a message in an internal workplace dashboard advising her colleagues she was not returning to work.

Ms Hall requested a dismissal letter to enable her to claim Centrelink benefits. The employer sent Ms Hall a text that said, “back to the dole que for you luv”. Ms Hall responded saying she had obtained another job, which was not true.

The employer later emailed Ms Hall confirming her resignation. The employer claimed Ms Hall resigned by posting on the internal workplace dashboard saying she was not returning to work, and confirmed it when she advised she had obtained other employment. Ms Hall argued those communications occurred after she had been dismissed.

Ms Hall lodged an unfair dismissal application. Her employer argued Ms Hall had resigned and hence was not entitled to bring an unfair dismissal application.

The Verdict

The Fair Work Commission (FWC) held that Ms Hall had resigned and was not dismissed. The FWC held that while the employer’s responses at times were childlike, he had never advised Ms Hall her employment had come to an end. It was Ms Hall who did not return to work and advised her colleagues that her employment had concluded. Ms Hall’s unfair dismissal application was dismissed.

The Lessons

Do not engage in heated text exchanges with employees, especially about disciplinary or potential dismissal matters. Text messages can easily be misconstrued. Even if your construction of the facts is ultimately accepted, defending dismissal or other types of employment claims is time consuming and costly, and there is always the risk your construction of what occurred will not be accepted.

Conversations about employment matters are best done in person or as part of a considered formal written communication.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.