The Fair Work Commission (the Commission) has once again cautioned employers against dismissing employees by text message, deeming it rarely appropriate or considerate. Despite text messaging being a now common form of communication, the Commission, in two recent decisions, has described dismissal by text message as repugnant.
The cases
In Kurt Wallace v AFS Security 24/7 Pty Ltd [2019] FWC 4292, a casual employee was awarded $12,465 in compensation after being told by text message that his services as a causal patrol guard with AFS Security were no longer required.
The employee had been employed by AFS for two years and had previously been verbally counselled regarding his work performance. Shortly after the employee raised a concern about not receiving payment for a shift he had worked, the employee was dismissed from his employment by text message.
The Commission determined the employee was a regular and systematic casual employee and therefore able to make unfair dismissal application. In response to the application, AFS argued that text messaging was the normal method of communication within the company.
Finding the employee had been unfairly dismissed, the Commission noted that:
“Notification of dismissal should not be made by text message or other electronic communication. Unless there is some genuine apprehension of physical violence or geographical impediment, the message of dismissal should be conveyed face to face. To do otherwise is unnecessarily callous”.
In forming its decision, the Commission considered that:
- the employee was not provided with a reason for the dismissal;
- the employee was not provided with an opportunity to respond to any issues before being dismissed; and
- the employee was notified by text message of the dismissal and did not receive any documentation relating to the dismissal.
A similar warning was issued by the Commission in Van-Son Thai v Email Ventilation Pty Ltd [2019] FWC 4116, after an employee of 12 years was terminated by text message. Here the Commission stated:
“It is not the first time I have had cause to point out that informing an employee of their dismissal by phone, text or email is an inappropriate means of conveying a decision, which has such serious ramifications for an employee. I consider it would only be in rare circumstances that a decision to dismiss an employee should not be conveyed in person”.
What should employers do?
The Commission has made clear that it will rarely, if ever, be reasonable to terminate an employee by text message. This is the case even in small businesses or where text messaging is the common method of communication.
Even where there is a valid reason for dismissal, if an employee is dismissed other than in person, the employer is likely to be at significant risk of an employee succeeding in an unfair dismissal claim. The Commission has wide ranging powers in unfair dismissal claims including ordering reinstatement or awarding significant compensation.
How can Moores help?
If you need assistance to navigate the complex path associated with managing or dismissing an employee, please do not hesitate to contact us.
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc4292.htm
https://www.fwc.gov.au/documents/decisionssigned/html/pdf/2019fwc4116.pdf