Worker fired for alleged insubordination over phone calls wins claim

An unfair dismissal case featuring claims of insubordination from an employer has resulted in the Fair Work Commission finding the dismissal harsh, unjust, and unreasonable.

A former general manager at Safiery Ltd has applied for an unfair dismissal remedy after his boss, Bruce Loxton, terminated his employment on claims of insubordination.

Loxton is the founder and chief executive of the company, whilst the former employee was the general manager of the Victorian facility. The company operates in the electronics, technology, and energy solutions industries.

The issue occurred on 19 December 2023, when Loxton telephoned the former employee, addressing his concerns about the former employee’s performance. He then requested that the former employee call him every day.

The following day, the former employee failed to call Loxton.

On 21 December, Loxton again attempted to call the former employee, yet received no answer. Shortly after however, he received a text message from the former employee stating he was already on a phone call, to which Loxton replied “Call when convenient.”

This phone call on 21 December never occurred, and the former employee also failed to call Loxton daily thereafter.

On 6 February, Loxton alerted the former employee about the fact that he had failed to call him daily:

“Please note I asked you on 20th December to call me every day. I did not receive a call on the 21st of December nor any day this year.”

From 7–18 February, the former employee worked as usual. On 19 February the former employee presented for work at his normal start time of approximately 6:30am, found he could not log onto his work email, and was notified that his access was removed by the Google workplace administrator.

After notifying Loxton about this, the former employee received a text saying:

“Yes, your contract has been terminated effectively immediately. An email has also been sent to you.”

The contents of the email contained claims of various incidents of insubordination, and refusal to adhere to instructions, citing the failure to partake in the daily phone calls as a key example, which led them with no choice but to terminate his contract.

The former employee filed an application for an unfair dismissal remedy. The basis of his evidence in reference to the daily phone calls was that Loxton never gave a clear formal direction for the former employee to abide by this directive.

Although he admits that he may have missed Loxton’s calls on occasions, he professed that he performed his duties as a manager to the best of his abilities, communicating with Loxton regularly as necessary.

Throughout his evidence, he maintained that he returned most calls at the earliest opportunity, and the reasoning that Loxton presented did not constitute serious misconduct justifying dismissal.

During the case, Loxton insisted that he gave the former employee clear instructions to contact him daily, referring back to a formal email he sent on 6 February 2024, which told the former employee to ensure that he called him daily.

The failure to follow what Loxton deemed was a clear instruction was the reasoning for justifying the instant dismissal, as in Loxton’s evidence, failure to call daily was serious misconduct.

After considering the evidence of both parties, commissioner Scott Connolly found no valid reason for the dismissal.

“If I had found a valid reason, I would have found the dismissal was harsh given Mr Margaritis’ age and because the employer’s concerns with his conduct were not clearly and formally communicated to him or so serious as to constitute serious misconduct.”

“If I had found there was a valid reason, I would also have found that the dismissal was unjust and unreasonable because Mr Margaritis was not notified of the reason for dismissal and was not provided with an opportunity to respond prior to the final decision being made,” Connolly said.

Connolly accepted some of the faults that the former employee had throughout his tenure, which included the communication breakdowns which reflected there was no respect in the relationship, but none of the evidence presented “amount[ed] to insubordination or serious misconduct justifying dismissal.”

As the former employee’s annual salary was $100,000, Connolly decided he would be awarded compensation of $29,999.99 gross plus superannuation of $3,299.99.