It is well established that employers cannot decide to end the employment relationship at the drop of a hat. In most cases there must be a valid, sound, and defensible reason behind the dismissal, which is to be communicated to employees in the appropriate manner and in accordance with proper process.

 

Employers won’t have a solid basis in defending unfair dismissal claims if their dismissal processes are missing these essential components.

In a recent case before the FWC,[1] an employer flew off the handle when he dismissed one of his star employees in a late-night Facebook messaging conversation which the FWC described as a chat which “spiralled out of control”.

The conversation began when the employer, who previously shared a good working relationship with the employee, messaged the hairdresser over Facebook to confirm whether he had an early morning appointment.  After the employee failed to respond, the employer erupted into a bizarre tirade of abuse and started to reprimand her while awaiting a reply. The employee received a warning message stating that the employer would “sever you as I have done to them! If you push me to it!”. The employer said he was concerned that the employee was “against him” by still being in contact with former employees. He asked her to “cut them off or you will not have a job with me!”.

After a series of further strange messages and numerous unsuccessful attempts to reassure her employer, the employee informed her employer that she was not going to come into work the next day due to stress. The employer responded, “good luck in your new job if you can find one… which you won’t… no one will hire you…”.  The employee replied “I quit. I don’t need to put up with your shit. I don’t need your luck…”. The employer continued his relentless and nasty verbal attack by suggesting he would “destroy” the hairdresser and “break her bones”.

The FWC, who found that the employee was in fact dismissed and did not resign, found that there was no valid reason for her dismissal. The termination arose in very unusual circumstances, and there was no evidence to suggest that there was any inappropriate behaviour on behalf of the employee or to support the employer’s claim that the employee was trying to undermine him.

Given that the dismissal occurred over Facebook, the Commission agreed that the employee was not notified of the reason for her dismissal. She was not provided with an opportunity to respond or to have a support person present because no termination meeting took place. In finding that the employee was unfairly dismissed, the FWC ordered the salon owner to pay the employee four weeks’ pay plus superannuation.

Lessons for Employers

• Prior to termination, employers are urged to ensure they have a valid reason for dismissal. If the reasons are related to misconduct, employers must be able to point to the evidence they relied on to show the misconduct occurred.  
• Employers must provide employees with the opportunity to respond to the reasons for their dismissal. At this point, mitigating factors may be disclosed which might prompt the employer to re-think the decision.
• Dismissals must follow a lawful process and be handled with procedural fairness. It is unlikely the FWC will find that a dismissal which occurs over Facebook messenger to be procedurally fair. In saying that, the steps taken will depend upon the circumstances of the situation.

 

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