Is it OK to sack your employees via phone, text or email?
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Is it OK to sack your employees via phone, text or email?

Is it OK to sack your employees via phone, text or email?

In most circumstances, dismissals take place during pre- arranged face to face meetings between employers and employees.  Employers are required to afford procedural fairness, and this usually involves meeting with the employee to discuss the circumstances around the termination. In saying that, there are circumstances when an employer may validly terminate an employee through less traditional means, such as through a phone call or email.

In a recent case before the FWC[1] a beauty therapist, who was summarily dismissed for serious misconduct, was advised of her dismissal in a late-night phone call which was followed up via email. Prior to the dismissal, the employee attended a disciplinary meeting where allegations regarding the employee’s unacceptable behaviour towards other members of staff were discussed.

The employee’s conduct included forcefully pushing a colleague in the chest, causing her to lose her balance and then slamming a sliding door shut in her face. Further the employee belittled and humiliated other staff members and was dismissive of her employer’s authority. The employee demonstrated no remorse or contrition for her conduct and as such the company made the decision to end her employment.

The FWC agreed that the employee posed a threat to the health and safety of other employees. Due to the severity of the employee’s actions, the Commission agreed that the employer had had a valid reason to let the employee go. It was found that the company complied with the small business fair dismissal code in a "robust and thorough" manner and accorded the employee procedural fairness.

In saying that, the Commission criticised the company for informing the employee of her dismissal over the phone and by follow-up email. It was found that the company could have organised a second meeting to discuss the termination arrangements. It was agreed that, unless there is "some genuine apprehension of physical violence or geographical impediment", then "dismissal should be conveyed face to face". The Commission took into account that the company had no human resource function or industrial relations expertise. It had relied on the FWC website information and the terms of the code to effect dismissal, which is silent on the requirement that dismissals are to occur in person.

Lessons for employers

  • Follow a dismissal process closely. The FWC will consider whether the dismissal was harsh, unjust or unreasonable in light of how the process was handled.
  • Where possible, employers are advised to conduct all termination matters in pre-arranged meetings and confirm in a written letter. It is not best practice to convey terminations over the phone, except in rare circumstances such as when there is a threat of physical violence or when the employee cannot be reached by any other means.
  • During termination meetings, employees must be provided with an opportunity to respond to the reasons for their dismissal and employers must genuinely consider their point of view. At this point, mitigating factors may be disclosed which might alter the decision.
  • All employees are entitled to request having a support person present during disciplinary meetings and employers cannot refuse this request.

Summary

Employers are advised that conveying termination via phone or email is not best practice and the decision to do so should be a last resort.  However, in a recent case the FWC was satisfied that an employer had no choice but to summarily dismiss an employee through a phone call and follow up email. An investigation into the employee’s conduct revealed that she was violent and posed a threat to other employees.

 

[1] Ms Anita Cachia v Scobel Pty Ltd ATF the S & I Trust t/a Emerse Skin & Laser [2018] FWC 2648 (21 May 2018).

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