Not ok in any (con)text: Texting, dismissal and the FWC

Terminating an employee’s employment can be a confronting situation. It is difficult news to deliver and is often fuelled with emotion. For those reasons, many managers and employers attempt to avoid conflict or confrontation by delivering the news in a way that doesn’t involve a face to face meeting, such as in email or text message.
In two recent decisions, the Fair Work Commission (FWC) has warned against such an approach and has heavily criticised two separate employers who dismissed employees via text message.

In Wallace v AFS Security 24/7 Pty Ltd [2019] FWC 4292, a security guard was dismissed in a text message that read, “Effective immediately we no longer require your services as a casual patrol guard with AFS Security.”

The security guard responded with a text asking “Please explain”, and tried twice to call the sender of the text but received no response.

The security guard then drove to the employer’s office to seek an explanation for his dismissal. When he arrived, the sender of the text message (who was responsible for the employer’s payroll and employment functions) was in her vehicle in the carpark and was about to leave. The security guard repeatedly asked her for an explanation. She told him he was a casual employee and an explanation for his dismissal was not required.

The security guard then made an unfair dismissal application to the FWC.

In its response to the security guard’s application, the only reason provided by the employer for the dismissal was that “His services as a casual employee were no longer required.”

On hearing the matter, the FWC found that the security guard had worked on a regular and systematic basis for about two years and had a reasonable expectation of continuing employment. He was, therefore, protected from unfair dismissal.

Ultimately, the FWC held that the dismissal was unfair because the employer did not comply with the Small Business Fair Dismissal Code, did not have a valid reason for dismissing the employee and it did not afford him procedural fairness.

The FWC was particularly scathing of the manner in which the employee was dismissed – via text message. The employer submitted that text message was the normal method of communication within the employer’s business and that “as a generational thing” people don’t use emails these days.

The FWC did not accept this submission. It said that it could not condone “the repugnant process” adopted by the employer in dismissing the security guard and the employer “acted with a perfunctory disregard for basic human dignity” and “manifest insensitivity.”

The FWC held that the security guard’s dismissal was unjust, unreasonable, harsh and “unconscionably undignified” and reflected poorly on the character of the individuals responsible.

The FWC ordered the employer to pay the security guard $12,465.00 and sent a clear message that employers should not dismiss employees via text message:

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. Even in circumstances where text message or other electronic communications are ordinarily used, the advice of termination of employment is a matter of such significance that basic human dignity requires that dismissal be conveyed personally with arrangements for the presence of a support person and documentary confirmation. (at [51])

In Son Thai v Email Ventilation Pty Ltd [2019] FWC 4116 a sheet metal worker was dismissed in a text message from his employer which read:

Effective immediately I give notice of termination of your employment, please note you are required to work your notice period…

Please note that your (sic) are entitled to 4 to 5 weeks employment termination notice period.

After serving out his notice period (and being asked by his employer twice to extend his notice period) the employee filed an unfair dismissal application with the FWC.

In response to the employee’s application, the employer attempted to argue, amongst other things, that the employee’s position was redundant and that the employer had complied with its obligations to the employee.

The FWC did not accept the submissions or evidence of the employer finding instead that the employee’s position was not redundant, that he had not been consulted in accordance with the relevant modern award and the employer had failed to comply with the Small Business Fair Dismissal Code.

The FWC ultimately held that there was no valid reason for the employee’s dismissal and he had been denied procedural fairness in the dismissal process, including because notice of termination was made via text message. The FWC commented:

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 rare circumstances that a decision to dismiss an employee should not be conveyed in person. For example, it may be necessary where the employer believes a dismissed employee might be a threat to the safety of his/her employees or because the employee expressly did not want a ‘face to face’ meeting to hear the outcome of any disciplinary process. (at [65])

Lessons for Employers

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 | sydney@workplacelaw.com.au

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.

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