When sacking an employee, is it acceptable to do it by text message? Get it wrong and you’ll end up on the wrong side of the Fair Work Commission (FWC) like this ‘outrageous employer’. Using SMS to communicate with staff is becoming more commonplace in today’s modern world. It may be convenient, but we highlight the pitfalls of using text messages to communicate with staff over disciplinary issues or termination decisions.
The Facts
After nineteen years of unblemished service with a ceramic tiles retailing company, the employee received notification of her dismissal by text message that her services were ” … not required with immediate effect …”.
At the hearing of the employee’s unfair dismissal claim[1] the FWC had no hesitation to find that the dismissal was harsh, unjust and unreasonable, both substantively and procedurally.
In scathing criticism of the employer, this is some of what the FWC had to say:
- “… the severity and magnitude of the unfairness in this case is so manifest that it must fall within a category of one of the worst unfair dismissals on record
- Not only was there no valid reason for the applicant’s dismissal, there was no reason at all, save for the spurious one; that ‘your services are not required’
- There was no evidence of any unsatisfactory performance or conduct issues relevant to the applicant. [S]he was a loyal, hardworking employee, who had even won awards for her sales performance
- … It beggars belief that it would treat any employee in the manner it did, let alone one of 19 years standing
- The [employee] was dismissed without any notice, for no reason and with no warning
- [T]he means of communicating her dismissal, by a brief SMS message was brutal, gutless and outrageous”
Is there place for SMS/Text Message dismissals?
In short, probably not. The principles about sacking an employee by text message gleaned from this dismissal case, may be explained as follows:
Risks
- Dismissal by way of text message clearly deprives an employee of any opportunity to respond, offer explanation or defence about any of the issues that may have contributed to the decision to dismiss
- It is difficult to accept that it could be reasonable or just for any employee to be dismissed without a fundamental process involving an opportunity to put a case, face-to-face, to the decision maker
- The requirement for such a process is primarily derived from the notions of natural justice
- If an employer is not prepared to deliver the message themselves, face-to-face, he or she risks creating the appearance that they do not have the courage of their convictions
- The basis for the dismissal decision is immediately open to challenge upon the inference that the employer did not have, in all good conscience, sufficient confidence in the decision to act with any conviction
- Consequently if dismissal is implemented by any means other than face-to-face communication, both the legal and ethical basis for the decision to dismiss is likely to face strong and successful challenge
Limited circumstances when text message dismissals may be appropriate
There are some circumstances where a decision to dismiss might be justifiably implemented without the need to provide the employee with a face-to-face opportunity to be heard.
Such circumstances would usually be confined to instances where an employee committed gross and wilful misconduct that was admitted or undeniably existent and no possible explanation or mitigation could alter the decision
Other circumstances could be contemplated where face-to-face contact may involve some genuine prospect of aggression or violence. These would be limited, unusual situations.
Implications for Employers
The primary risk with a text message dismissal is that it would deny the dismissed employee procedural fairness (ie. an opportunity to respond to the employer’s concerns or workplace investigation) thus causing the dismissal to be procedurally unfair.
The circumstances are so limited for when a text message dismissal may be considered appropriate and the risk of an adverse outcome is so high, employers need to:
- Think very carefully about why they are considering a text message dismissal
- Consider whether procedural fairness has been provided
- Explore whether there is a more appropriate means of communication which also provides the employee with an opportunity answer any related concerns about performance or conduct.
[1] Kaye v Fahd and others [2013] FWC 1059 (2 May 2013)
