DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Carol Ray
v
Priority ERP Pty Ltd
(U2020/3836)

Application for an unfair dismissal remedy – whether dismissed – whether dismissal consistent with the Small Business Fair Dismissal Code – whether dismissal harsh, unjust or unreasonable – whether remedy appropriate.

[1] Carol Ray and Gerard Unsworth were involved in an intimate relationship for approximately 7 years. Mr Unsworth is the Director of Priority ERP Pty Ltd, a business that sells and installs digital enterprise resource planning systems. For approximately the last 15 months of their relationship, Ms Ray was employed in the business.

[2] The relationship ended in spectacular fashion over Sunday and Monday 22-23 March 2020 at a time of heightened tension related to the COVID-19 pandemic. A headline in The Age that Sunday evening declared “Victoria to shut down all non-essential activity”. Ms Ray was already upset with Mr Unsworth because he had decided to spend the weekend with another woman. Mr Unsworth was upset about Ms Ray’s reaction to his weekend activities and also grappling with the consequences of a possible shut down on his business.

[3] In response to a ‘WhatsApp’ work chat post by Mr Unsworth about the likely need to work from home if business activity was shut down, Ms Ray posted that she would “not bother” to come in the next day. Mr Unsworth became enraged at what he saw as her disrespecting him in front of his employees. A prolonged and angry text message exchange ensued, encompassing both resignation and Ms Ray being “fired”. As the exchange petered out and it became clear that the employment relationship was at an end, Mr Unsworth told Ms Ray to take the matter to court if she was unhappy about “his decision”. Ms Ray promptly took up the invitation and filed this application 7 days later.

[4] On 17 June 2020, I decided that Ms Ray was an employee of the business. 1 She is protected from unfair dismissal because she was employed for more than 12 months and her annual income was less than the high income threshold. No issue of redundancy arises. The dismissal was not a case of genuine redundancy.

[5] For the reasons that follow, I find:

1. Ms Ray was dismissed by Priority ERP on 23 March 2020;

2. The dismissal was not consistent with the Small Business Fair Dismissal Code;

3. The dismissal was unfair; and

4. No remedy is appropriate in this case.

Was Ms Ray dismissed?

[6] Priority ERP denies that Ms Ray was dismissed. It says she resigned before she was “fired” in the text message exchange on 22 and 23 March 2020 and anything that came after her resignation did not change that. Close scrutiny of the text message exchange on Sunday 22 March 2020 and Monday 23 March 2020 reveals that not to be the case.

[7] The post on WhatsApp that set Mr Unsworth off was made at 7.50pm on Sunday evening and came after what Mr Unsworth described as Ms Ray’s “curt response” to his call. It said:

“I won’t bother coming in tomorrow but let me know if there’s anything you want done.”

[8] A minute later, Mr Unsworth fired off an angry text message to Ms Ray, saying:

“Wtf?????

“What kind of fucking attitude is that?”

[9] Ms Ray responded to the effect that it was a long way to travel if on arrival she was going to be told to work from home.

[10] Mr Unsworth fired back again in a most offensive way. He said “how dare” she announce things like that on WhatsApp, told her to fuck off and called her a c*nt. He said he was sick of her not taking her role with Priority ERP as a job.

[11] Ms Ray told him to stop. Mr Unsworth told her to stop. He complained about her “playing the prick” the previous Friday and earlier that day. He complained that she was not doing her job or taking it seriously. Ms Ray responded about what she had and had not done.

[12] After a barrage of complaints directed at each other, Ms Ray wrote “Call me a c*nt one more time and we are done with work and everything.” Mr Unsworth replied “Deal. Remove all the banking stuff.” He continued to complain about Ms Ray’s attitude. When Ms Ray tried to explain her behaviour, Mr Unsworth called her a c*nt again. Ms Ray responded “The bank card is in the tin.”

[13] Had the exchange ended at this point, I would have found that the employment came to an end at the initiative of the employer rather than by Ms Ray resigning, when Mr Unsworth decided to call her a c*nt for the second time.

[14] However, the exchange, which must be taken to have been ‘in the heat of the moment’ did not end there. More argument ensued. Ms Ray provided information about work activities and Mr Unsworth again told her to “fuck off”. He complained that the work she was referring to should have been done the week before and that she did not prioritise work or make an effort. Ms Ray responded:

“We are done. I warned you and you proceeded to call me a c*nt again. Seeing as I do nothing then no one will have to do the jobs I don’t do.”

[15] The pair continued to argue, with Mr Unsworth accusatory and Ms Ray defending herself and trying to explain why she was upset about what had happened over the weekend. Mr Unsworth then wrote:

“Tomorrow is a normal workday. You make you choices. You need to STOP childish behaviour with me. You must also do the work you’re given. Not telling me you can’t. Did you do any send learning since Friday? I know the answers no. That carol is lack of effort. I’ve told you from the outset on both work and personal life. It’s up to you to make the efforts. You cannot pick and choose. I am not listening to excuse reasons for playing these childish games that you regularly undertaken. You’re in or out. You choose what to hear. You choose to investigate, look into, snoop at and look for opportunities to make a drama. You do it to me and in many other aspects of your interactions with people. It MUST stop.period!!”

[16] It is apparent that Mr Unsworth considered the relationship still on foot and that he was leaving it to Ms Ray to decide whether she would attend work the following day. Ms Ray asked for clarification and the following exchange occurred:

[17] Ms Ray responded to the effect that she did not need to resign as she was a casual. Mr Unsworth asked her to delete anything to do with work and write a resignation. Ms Ray again tried to explain her WhatsApp message and Mr Unsworth continued to goad her to resign. Ms Ray then told him to “Get fucked!”. After a brief pause, Mr Unsworth then wrote:

“Tomorrow is a work day. Unless you choose to resign.

If you resign I expect a simple letter to confirm you choose not to work.”

[18] This was the last message sent between the parties on Sunday evening. It is apparent at this point that Ms Ray had decided to end both the personal and professional relationship with Mr Unsworth, but that Mr Unsworth did not yet regard the employment relationship as at an end.

[19] At 12.24am on Monday morning, Ms Ray sent a message to Mr Unsworth seeking to contradict his earlier complaint that she had not paid a business Officeworks account. At 7.45am Mr Unsworth responded, saying “Think for yourself”, a reference to her following instructions literally and not taking initiative.

[20] Ms Ray, who usually worked Mondays and Fridays, did not attend for work that morning. At 8.45am Mr Unsworth wrote to her again, saying “I didn’t get a letter I expect you in.”

[21] At 11.14am, Mr Unsworth wrote “Stop fucking ignoring me This is important It’s not a game”. This provoked a further exchange about whether WhatsApp could be used for work or not. Ms Ray then wrote:

“As I said stop taking stress out in [sic] me. I’m not talking to you til you apologise for calling me a c@#+”.

[22] Mr Unsworth refused to apologise and demanded Ms Ray apologise instead. Ms Ray took him to task over his position on using WhatsApp for work and accused him of losing the plot. Mr Unsworth then wrote:

“Grow up

You’re fired.”

[23] Ms Ray responded “Lol I already quit!”. She countered his criticism of her being unprofessional with references to his own inappropriate behaviour of a sexual nature in the office. She asked for written reasons for the dismissal.

[24] At this point, Ms Ray claimed that she was “self-isolating” and could not for that reason be dismissed. Clearly, she was not absent from work for reasons related to the COVID-19 pandemic. Her absence was the product of the argument between them. Mr Unsworth dug in, repeating that Ms Ray was fired and that her termination was complete. Ms Ray threatened to reveal his texts and voicemails so that people could learn “the truth” about him. Mr Unsworth again told her to fuck off.

[25] At 12.00pm, Mr Unsworth wrote “so we’re absolutely clear” and attached a picture of a letter of termination. The letter said:

“Dear Carol

Due to your continued arguments and unprofessionalism I am left with no option but to terminate your employment with Priority ERP with immediate effect.

Your outrageous behaviour towards me and your responsibilities is completely inexcusable. I am frankly disgusted.

Yours

Ged Unsworth”

[26] The letter too must be taken to have been issued in the heat of the moment because it appears that Mr Unsworth was not yet closed to the possibility of Ms Ray returning to work. Between 12.03pm and 12.13pm he asked Ms Ray twelve times if she wanted to work. Ms Ray did not immediately answer the question, instead asking if he was going to apologise for the name calling. Mr Unsworth returned the favour and did not answer Ms Ray’s question. He demanded an answer to his own. He refused a request by Ms Ray for time to think. Finally, Ms Ray replied that yes, she did want to work if she was put on contract. Mr Unsworth replied that it was not a negotiation. When Ms Ray replied that she was serious, Mr Unsworth responded:

“Ok it stands that you’re terminated

I will not be blackmailed or played by childlike behaviour.

Your proem us [sic] that you don’t know when to shut up

If you disagree with my decision then please take it up elsewhere. You had an opportunity to drop your sarcastic and argumentative manner but didn’t.

The continued threats and demands are simply not acceptable.

You really need to rethink your approach.”

[27] Over the next 11.5 hours, the exchange continued. Ms Ray asked for a “mandatory” first warning and said if it was not received, she would see him at work on Friday unless told to work from home. Mr Unsworth accused her of criminal behaviour in the form of blackmail requiring “immediate termination”. Ms Ray wrote “See you Friday” and Mr Unsworth replied “Do not even think of attending.”

[28] Ms Ray’s tone became pleading. She tried to persuade him to put it behind them and move on:

“Let it go and I will let your language go. I need to work or I will lose my house and your comment about Centrelink proves you know that.”

[29] Mr Unsworth was unmoved. He confirmed that things were “finished, ended, done” and that she could take it to court as he was not changing his decision. He directed her not to come to the office and confirmed the termination of employment.

[30] I find that Ms Ray’s employment was terminated at the initiative of Priority ERP from the moment Mr Unsworth wrote “Ok it stands that you’re terminated” at 12.41pm. Nothing in the exchange after that time indicates any willingness to reconsider his position, despite attempts by Ms Ray to persuade him. His repeated confirmation of the decision to terminate her employment in the hours from 12.41pm to 10.24pm and the lack of any change in that position from then until the date of hearing tells against any suggestion that the decision was still in doubt.

[31] Ms Ray was summarily dismissed on 23 March 2020.

Was the dismissal consistent with the Small Business Fair Dismissal Code?

[32] At the time of dismissal, Priority ERP employed 4 employees in addition to Mr Unsworth. It was a small business employer. 2

[33] The text exchange above discloses the following reasons for dismissal:

1. Disrespecting Mr Unsworth on the group WhatsApp chat;

2. Refusing to apologise for the WhatsApp chat post;

3. Not attending for work on the Monday;

4. Argumentative and unprofessional conduct; and

5. Asking for a contract for work as ‘blackmail’.

[34] It is clear that Mr Unsworth believed these matters warranted immediate dismissal. His belief was not a reasonable one. At best, the post on the group WhatsApp warranted a warning for bringing personal matters to work – a behaviour it seems Mr Unsworth also exemplified on occasion. Ms Ray’s refusal to apologise for the post and any of her conduct in the text message exchange that was argumentative or unprofessional must be seen in light of Mr Unsworth’s repeated offensive and demeaning criticism of her. He too refused to apologise to Ms Ray. In the circumstances, Ms Ray’s conduct was a reasonable response to Mr Unsworth’s appalling conduct. It was not conduct that justified any reasonable belief that immediate termination was an appropriate outcome in the circumstances.

[35] Ms Ray did not attend for work on the Monday, but she had notified Mr Unsworth of this the day prior and she was a casual employee. Her failure to attend could not reasonably have founded a belief that summary dismissal was warranted. Nor was her request for a contract - which was a reasonable request to legitimise an ad hoc, casual employment arrangement and which on one view amounted to Ms Ray exercising a workplace right. It was hardly a request that would be considered criminal conduct.

[36] While concerns about Ms Ray’s performance were raised in the two day exchange, these were not concerns about which Ms Ray had any advance notice. She had not been given any warnings either about the need to improve or that she was at risk of being dismissed. No reasonable chance was given to Ms Ray to rectify concerns Mr Unsworth may have had about her performance.

[37] The dismissal was not consistent with the Small Business Fair Dismissal Code.

Was the dismissal harsh, unjust or unreasonable?

Was there a valid reason for the dismissal related to capacity or conduct?

[38] I am unable to discern any valid reason for dismissal related to Ms Ray’s capacity or conduct. I accept that she was sulking about Mr Unsworth’s weekend activities with another woman. Why that prompted such an angry response from Mr Unsworth is hard to fathom. Her post on the WhatsApp chat as well as some of her comments to him over the text message exchange were less than desirable in a workplace context, some of them very much so. The text message exchange must be read in the context of a long-term personal relationship that was contemporaneously imploding. Mr Unsworth’s contribution was even worse. As Ms Ray’s employer, he held the balance of power. He knew it and aggressively sought her submission. He refused to back down or to negotiate. Ms Ray finally ceded, saying she did want to work if she was put on a contract. Mr Unsworth was outraged and dismissed her.

Was that reason notified to the employee?

[39] There was no valid reason for dismissal but to the extent that this remains a relevant consideration, the reasons for dismissal were ventilated at least in shorthand in the text message exchange from 22 to 23 March 2020.

Was there an opportunity to respond to any capacity or conduct related reason?

[40] There was no genuine opportunity given to Ms Ray to respond to concerns raised by Mr Unsworth about her conduct or performance.

Was there any unreasonable refusal to allow a support person to be present to assist at any discussions relating to dismissal?

[41] There was no unreasonable refusal to allow a support person to be present at any discussions relating to the dismissal.

Was the Applicant warned about relevant unsatisfactory performance?

[42] Ms Ray was not given any warnings about unsatisfactory performance other than what occurred in the course of the text message exchange.

Degree to which the size of the employer’s business would be likely to impact on procedures followed in effecting the dismissal

[43] Priority ERP was a small business employer at the time of dismissal. While this might reasonably affect the procedures followed in effecting the dismissal, in this case I doubt any different process would have been adopted had the business been of larger size. The breakdown of their personal and professional relationship was a process unique to Mr Unsworth and Ms Ray.

Degree to which absence of dedicated human resources management specialists or expertise in the business would be likely to impact on procedures followed in effecting the dismissal

[44] In the same way as business size, the absence of dedicated human resource management or expertise in Priority ERP’s business might also have affected the procedures followed had it been any relationship other than the one that it was. For the same reasons as above, I doubt any different outcome would have resulted even with access to dedicated human resources expertise.

Other relevant matters

[45] The employment relationship came into existence for reasons of convenience and to assist Ms Ray financially. Ms Ray performed a range of tasks for the business but was still learning many aspects of the book-keeping side of her role. Mr Unsworth was aware of the likely financial impact of his decision on Ms Ray when he decided to terminate the employment relationship and chose not to moderate his behaviour for this reason.

[46] The evidence in this case is but a snapshot in time. It does not reflect the totality of a relationship that endured over many years nor the history that informed the behaviour of both Ms Ray and Mr Unsworth at its sorry demise. What occurred would never be acceptable in an ordinary workplace context, but this was not that. Even so, as her employer, Mr Unsworth had a duty of care to Ms Ray and it is regrettable that this appears to have been forgotten in his haste to bring the arrangement to an end.

Conclusion on merits

[47] Each of the factors are either neutral considerations or weigh in favour a finding of unfair dismissal. I find that the dismissal of Ms Ray was unjust and unreasonable. It was unfair.

Remedy

[48] Reinstatement is the primary remedy available under the Act. In my view, reinstatement would be a wholly inappropriate remedy in light of the highly toxic relationship between the parties. That leaves the question of whether compensation is appropriate and if so, the amount of compensation.

[49] I do not consider compensation an appropriate remedy. The viability of Priority ERP is in question due to the effect on business of the COVID-19 pandemic. Ms Ray is employed as a teacher and has a source of income. While this case arose in the context of an employment relationship, that was consequential to the personal relationship between them. Further intervention by the Commission will only exacerbate their existing hostility.

[50] In time, the dust will settle and each will be left with a public record of matters that are highly personal to them, accessible to anyone who wishes to find it on the Commission’s website. That is remedy enough.

COMMISSIONER

Appearances:

C Ray on her own behalf.
G Unsworth for the Respondent.

Hearing details:

2020.
Melbourne (telephone hearing):
June 12.

Printed by authority of the Commonwealth Government Printer

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 1   Ray v Priority ERP Pty Ltd [2020] FWC 3155 (17 June 2020).

 2   Fair Work Act 2009 (Cth), s.23.