In two separate cases decided this week, the Fair Work Commission has made it clear that termination of employment via text message is unlikely to amount to a fair dismissal. The method has been variously described by the Commission as “unconscionably undignified”, “hopeless”, “repugnant”, “unnecessarily callous” and “disgraceful and grossly unfair”.
In the first case, an employee received a text message stating that his employment was terminated with immediate effect and that he was required to work out his notice period. The text message followed a discussion with the employer in which the employee was told that his rate of pay would be cut from $31.78 per hour to $25 per hour. The employee did not agree to the paycut and received the text message after leaving the workplace.
Deputy President Sams was scathing of the employer both in terms of the reasons provided for the dismissal and in particular the method of dismissal. He described the dismissal by text message as “deliberate and calculated” and “breathtaking in its complete disregard for any modicum of natural justice.” Commenting further on the accepted practice for termination of employment, Deputy President Sams stated:
“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 in rare circumstances that a decision to dismiss an employee should not be conveyed in person.”
In the second case, a casual worker who had worked regular shifts over the past 2 years was summarily dismissed by test message. The worker made a number of phone calls and sent reply messages requesting information about the reason for termination of his employment but received no reply. In its defence, the employer claimed the use of text message was “a generational thing”.
In finding that the dismissal was unfair, Commissioner Cambridge stated that:
"Unless there is some genuine apprehension of physical violence or geographical impediment, the message of dismissal should be conveyed face to face."
Commissioner Cambridge acknowledged that the employer was a small business with a level of informality in its dealings with workers but stated that this did not excuse the company’s “perfunctory disregard for basic human dignity” when it sent the text message. The worker received six months pay as compensation.
Lessons for employers
- Ensure there is a valid reason for dismissal of an employee
- Unless there is a compelling reason not to, conduct a face-to-face meeting with the employee when informing them of the termination
- In most cases, even when there is no requirement (for example a casual employee or an employee on probation) it is advisable to give the employee a reason for their dismissal
- If unsure seek advice
In two separate cases heard by the Fair Work Commission this week, termination of an employee by text message has been heavily criticised and has resulted in successful unfair dismissal claims by the affected employees.