Judge delivers harshly critical ruling over 'opportunistic' action
Non-bank lender Wisr has been ordered to pay more than $50,000 for unlawfully firing a manager for making a joke that the company’s CEO exaggerated as inciting violence.
The Federal Circuit Court ruled that Wisr CEO Anthony Nantes used a business development manager’s comments on Skype as an excuse to sack her because she wouldn’t stop pressing claims that then-chief operating officer Matthew Lu said he wanted to “punch her in the face,” according to a report by The Australian Financial Review.
Judge Jonathan Forbes said the manager’s complaint about Lu set in motion the events that led to the company’s discovery of her Skype chats, but ruled that her termination wasn’t based on those messages at all, despite the company’s claims to the contrary.
“The substance of those prior complaints caused Mr Nantes to judge the Skype messages more harshly and to act opportunistically and with greater force than would have been the case had those complaints never been made,” Forbes said. “While it is argued by [Wisr] that Mr Nantes encouraged and welcomed complaints and was not irritated by them, in my opinion that was not a universal truth.”
The manager had made several complaints to the company, including that CFO Andrew Goodwin had given her phone number to a broker without her consent, AFR reported. However, an investigation was sparked by her complaint that Lu had allegedly told her boss, head of growth Peter Beaumont, that he wanted to punch her in the face. A colleague allegedly overheard the comments and admonished Lu for them.
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Lu denied the allegation but said that he could not recall his comments, only that they were taken out of context, AFR reported.
Nantes told the manager he couldn’t substantiate the allegation. The manager said that when she complained to him about the investigation over coffee, Nantes became “extremely erratic.”
A few days later, Nantes told the manager to attend a meeting with him, Beaumont and Wisr’s compliance officer. At the meeting, he allegedly read from a script prepared by the company’s lawyers that said he was considering disciplining her for “offensive” online comments.
The comments included a Skype chat in which the manager, while bantering with a colleague, said, “I feel like punching someone lol” after complaining that she had only had two settles that day, AFR reported.
In another chat, the colleague joked, “I will uppercut them for u” in response to the manager saying she was getting the silent treatment at work. The manager replied, “you better.”
Within hours of the disciplinary meeting, Nantes called the manager and told her she was fired, effective immediately, because of the comments.
Nantes insisted to the court that the manager’s comment “you better” was inciting her colleague to commit an act of violence. He said that the comment was an imminent threat to the health and safety of Wisr employees and warranted her immediate termination, AFR reported.
Forbes, however, wasn’t buying it. He said he believed Nantes understood the manager’s Skype comments weren’t serious.
“I believe the CEO’s reaction to fewer than 10 words in a body of a fairly benign informal Skype chat has been exaggerated,” the judge said. “I am not satisfied that Mr Nantes had any real concern that [the manager] posed any actual threat to other employees or that she might engage in physical violence at the workplace or incite others to do so.”
Instead, Forbes said the firing was driven by the manager’s complaints about Lu’s behaviour, and that “her refusal to let go of the issue … became an increasing source of frustration for Mr Nantes.”
The judge ruled that the dismissal came about because the manager had made a workplace complaint. He ordered Wisr to pay her six months of lost income – about $45,754 – in compensation, as well as $7,000 for the distress caused by the firing.
The court has yet to determine civil penalties against the company for unlawful conduct, AFR reported.
