There is no doubt that we are glued to our phones, our mobile phones to be specific. In 2016, the Australian Communications and Media Authority reported that 5.78 million Australians no longer have a fixed-line telephone at home, relying solely on their mobile phones to communicate with others. A 2016 Deloitte study found that 27% of Australian mobile consumers claimed to not have made any standard voice calls in a given week, suggesting that we are increasingly reliant on other uses of our mobile phones, like text messaging.
Clearly, mobile phones are changing the way we communicate with each other, including in the workplace, and text messaging is becoming a part of employer/employee communication.
The perks and the pitfalls
Text messaging is a good way for people to communicate as messages are generally short meaning senders stick to the point and messages are direct to a person’s phone.
Unfortunately there are some major drawbacks to the use of text messaging in the employment context and we have noticed a steady increase in cases before the Fair Work Commission (FWC) where text messages have contributed to the situation in dispute.
Take for example the recent decision of Engelbrecht v BMI Group Pty Ltd T/A BCC Crushing  FWC 3431 where Mr Engelbrecht (the Employee) claimed that he was dismissed via text message and that this dismissal was unfair.
The text message in question was sent to the Employee from his supervisor three days after the Employee was issued with a written warning. Feeling uneasy about the written warning and his relationship with his supervisor, the Employee approached another supervisor in the business to voice his concerns.
The text message sent by the Employee’s supervisor read as follows:
“[Employee] I don’t understand why you didn’t see me this morning. I also don’t understand why you would go through the trouble of a stat Dec from [your partner]. You were given a written warning for failing to make contact prior to shift and it’s as simple as that. I will require a written resignation letter should you be wished to be paid your entitlements as you have not served out a notice period. You are required to return [employer] property such as keys etc. Could you please call to discuss.”
The Employee did not call to discuss the text, he simply stopped showing up to work.
The Employee considered the text to be constructive dismissal and claimed that he had no other option but not to return to work. The supervisor on the other hand thought that the Employee had verbally resigned during his conversation with the other supervisor and he wanted to discuss the matter further.
When the Employee made an unfair dismissal application to the FWC, the employer raised a jurisdictional objection on the basis that the Employee had not been dismissed and was therefore not protected from unfair dismissal.
The question for the FWC was whether the text message amounted to constructive dismissal at the employer’s initiative.
On analysing the text message and the surrounding context, Commissioner Hunt said that she did not consider the text message to be terminating the Employee’s employment. It was noted that, in fact, the text message invited the Employee to call the supervisor, which he did not do.
In the circumstances, the Employee should have done more to clarify the meaning of the text message before he stopped showing up to work.
The Employee’s unfair dismissal claim was dismissed by Commissioner Hunt on the basis that there was no dismissal.
Clearly, there was a breakdown in communication in this case as the result of a single text message which resulted in an employee losing his job and all parties ending up before the FWC.
The most important lesson for employers and managers to take away from this case is: avoid texting employees about serious employment matters such as disciplinary issues, performance issues, termination, resignation, or offers of employment.
These are the serious issues that can drastically change the course of an employment relationship and the brevity of the text messaging medium does not allow for the magnitude of those critical moments to be appropriately addressed or recorded.
In essence, it comes down to the fact that text messages are by their nature short, informal and often not even composed of full sentences or complete words. They are, therefore, prone to misinterpretation in circumstances where tensions may already be running high.
Before sending a text message, employers and managers should also consider whether access to the content of the message will be required at some later point in time. Individual text messages are notoriously difficult to locate after the fact, difficult to print or share outside of a messaging app and are not always stored for long periods of time.
Good record keeping makes for good compliance with workplace laws and in the modern age text messages are challenging for record keeping.
This is not to say that text messaging should be banned between colleagues, rather that the subject matter and context of the subject matter should be carefully considered before deciding to communicate by text.
Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.
02 9256 7500 | firstname.lastname@example.org
Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.
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