Hain v Ace Recycling Pty Ltd [2016] FWC 1690: Worker Unfairly Dismissed for Swearing at CEO

In the case of Hain v Ace Recycling Pty Ltd [2016] FWC 1690 (16 May 2016), it was found that a company chief executive (Mr Tony Di Carlo) was criticised for using inappropriate language and for sacking a worker (Mr Tre Hain) by text message, after the worker called the executive "an old c---".

While the employee's conduct would ordinarily warrant dismissal, when balanced with the CEO's inappropriate conduct, it was found to be unfair.

Background

The employee said the chief executive's demeanour became aggressive and he started swearing when the employee asked about his unpaid overtime.

The executive from Queensland company, Ace Recycling Pty Ltd was alleged to have said words to the effect that "I am a f--king wealthy man, you shouldn't worry about f--king money".

The employee allegedly went on to say "you are earning more f--king money than me, I can't afford to put food on the f--king table for my family". By this time the employee said he was angry and defensive. The employee said:

The executive later sent the labourer a text message saying "the old man here. Do not come back tomorrow thanks".

Mr Hain then filed an unfair dismissal claim after allegedly failing to receive his full entitlements after his sacking in September 2015.

The Decision

Commission Deputy President Ingrid Asbury, commented at [para 4]:

The Deputy President also commented that she has "some sympathy" with the complaint against the labourer who was compensated for unfair dismissal.

Ms Asbury said she did not accept that a text message was an appropriate way to dismiss an employee. It denied the worker procedural fairness including an opportunity to respond to the reason for dismissal. She said the chief executive's response to the labourer's inquiry about his unpaid overtime was "totally inappropriate".

The Deputy President said the executive's inappropriate language and behaviour was [at para 39]:

She said the "old c--t" retort indicated a breakdown in the employment relationship and that an employer would generally have a valid reason to dismiss an employee for such a comment.

Response from the Company

The company argued the dismissal was fair and that the employee's comment to the CEO was not one that would be tolerated in any workplace in Australia.

The Penalties

The Deputy President accepted the labourer had not been paid for overtime or his accrued entitlements. This was considered in her assessment of whether the dismissal was unfair.

Ace Recycling was ordered to pay the labourer $828 in compensation less tax for his unfair dismissal. Further compensation for any unpaid wages and other entitlements would need to be sought from the company's liquidator.

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Worker sacked by text message after swearing at boss was unfairly dismissed – smh.com.au

Hain v Ace Recycling Pty Ltd [2016] FWC 1690 (16 May 2016)