Reminder: Separate romance and work Reminder: Separate romance and work

Reminder: Separate romance and work

28 September 2020 | Employment and Safety

A recent decision by the Fair Work Commission demonstrates how romantic relationships in the workplace can interfere with the professional employment relationship, and how decisions made in the “heat of the moment” may be dangerous.

In Issue

The main issue in this case is to determine whether there was an unfair dismissal, and since the employer was a small business employer, whether the dismissal was consistent with the Small Business Fair Dismissal Code.

The background

Priority ERP Pty Ltd (the employer) was a small business employer with 4 employees and Gerard Unsworth (Mr Unsworth) was the director. The employer was in the business of selling and installing digital enterprise resource planning systems. Carol Ray (Ms Ray) was an employee and was involved in an intimate relationship with Mr Unsworth for approximately 7 years. Ms Ray was employed during the last 15 months of their personal relationship.

Tension within Mr Unsworth and Ms Ray’s personal relationship had heightened at or around the same time as the COVID-19 pandemic, which had already posed issues for the business. Ms Ray alleged that she had been dismissed, however, Mr Unsworth argued Ms Ray had resigned before he dismissed her.

Commissioner McKinnon examined the Whatsapp text messages exchanged between 22-23 March 2020, which were central in determining whether Ms Ray had been dismissed, or whether she had resigned. Upon scrutiny of the exchanges of text messages, it demonstrated Ms Ray was summarily dismissed on 23 March 2020.

The decision

Ms Ray was found to be dismissed by Priority ERP on 23 March 2020, as opposed to having resigned.

“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.”

The dismissal was found to be harsh, unjust and unreasonable, and not consistent with the Small Business Fair Dismissal Code.

Commissioner McKinnon outlined that despite the fact that the reasons for the dismissal were expressed in the text messages between 22 and 23 March 2020, there was no valid reason for the dismissal. It was found that there was no genuine opportunity to respond to the concerns raised, there were no warnings given in relation to the unsatisfactory performance “other than what occurred in the course of the text message exchange”, and had there been a dedicated human resources manager, or if the business was of a larger size, the breakdown of the unique personal and professional relationship would not have lead to a different outcome.

Implications for you

This decision is a good reminder that despite personal relationships in the workplace, the employer still has a duty of care to its employees and in the process of a termination, there requires consideration of procedural fairness. Employers should be alive to the risks of romantic relationships in the workplace, or at least prevent any conflicts of interest that may arise. A method of addressing this is to ensure there are adequate workplace policies in place to prevent issues from escalating.

Carol Ray v Priority ERP Pty Ltd [2020] FWC 5072

This article was authored by Laura Sowden and Anna Ly. 

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Laura Sowden

Laura Sowden

Special Counsel

Anna Ly

Anna Ly

Associate

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