Fired for failing to use an emoji

In the recent case of Kristen Gordon v Sens Catering Group Pty Ltd [2022] FWC 1790, an employer, Sens Catering Group (the Employer) dismissed an employee as she had allegedly been ‘unfriendly’ in a text message to her manager because she failed to use a smiley face emoji.

Ms Gordon (the Applicant) had worked for the employer as a supervisor for just over 14 months on a casual basis.

The Applicant and the General Manager had a disagreement over the rostering of staff across several cafes owned by the Employer and it was this disagreement and the Applicant’s failure to use an emoji in her message that led to the Manager dismissing the Applicant.

Prior to this text message exchange, the Applicant had been sat down multiple times by the Employer and encouraged to resign.

She had also been forced to explain the IVF treatment that she was going through.

One week after being dismissed the Employer made an offer to the Applicant to run a new café that the Employer had a 5% ownership share of.

The Applicant was suspicious of this offer and the Employer then submitted that they had a ‘good chat,’ and said that the Applicant was happy to return to her role, notwithstanding that the Applicant did not wish to be reinstated.

Finally, the Fair Work Commission (the FWC) stated that if it had not been for the dismissal, the Applicant would have continued in her role for at least another three months as there was no evidence of complaints about her performance.

The FWC held that the Applicant was unfairly dismissed, and the Employer was ordered to pay the Applicant $5,357.80 plus superannuation.  

This case is a timely reminder that relying on communication via text message rarely provides strong legal grounds for a dismissal and it is best to seek legal advice prior to terminating an employee’s employment.

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