Recently, there have been a few articles in the national news covering the issue of employees who have been sacked via text message. As an employment law firm, we have also witnessed the use of email and other electronic means to terminate employees.
In the recent text message case, Fair Work Australia (FWA) had to decide whether an employee was unfairly dismissed when a retail shop owner, Ms Sarkis of Modestie Boutique in Liverpool , summarily dismissed her employee, Sedina Sokolovic by sending her a text message which read:
“Sedina, I have let you go for two reasons. Firstly you shouldn’t swap the shift without letting me know. Secondly you even swap the shift you start one hour late knowing it will be busy and leaving Ivanna alone. That shows me you not taking me serious or the work. Which hurts me enough and you can pick up your pay tomorrow and drop the key. You don’t need to call me and I don’t see that we can work together. This decision is made by Robert and I. Thank you for everything.”
Briefly, the background to this case was that the employee was engaged as a regular casual to work at the boutique, and had done so for over two years. Just prior to her dismissal, the employee neared the end of a 15 hour shift during the Christmas peak trading period and was not feeling well. She arranged to swap a shift with another co-worker for the next day, being Christmas Eve. On this day, with the shop under the sole supervision of the co-worker, $5000 worth of merchandise was stolen from the store. On Christmas day, the employee sent a text message to the employer indicating that she was aware of this theft and at a convenient time, would like to talk to the employer about this matter and the issue of swapping shifts with the co-worker in the future. On Boxing Day, the employee received the text dismissing her as outlined above.
It was under these circumstances that the employee brought her case to FWA. FWA ruled that the employer should pay the employee almost $10 000 in compensation as dismissing the salesperson via SMS deprived her of any opportunity to respond. Additionally, there was a lack procedural fairness in relation to the termination.
The Commissioner stated that “in the circumstances where dismissal was implemented by text message there is simply no opportunity to allow a support person to assist. The position that is therefore created when dismissal is conducted via text message is tantamount to an unreasonable refusal to allow a support person to assist.”
A few days after this ruling was handed down, we read again of a case where an employee has been sacked via a text message. According to various news sources, a 22 year old Brisbane hairdresser was allegedly fired last month as a senior hairdresser ,following her complaints regarding the spruiking of hair products to customers. According to the employee, Ms Sahra Danes, she was sent a text which allegedly stated:
“gave a lot of thought to our chat yesterday and I think it’s in all interests that we call it a day for you at Elysium Hair & Beauty. I’m ending your employment with immediate effect (you are not required for work today).”
Ms Danes is unable to lodge an unfair dismissal claim due to not meeting the requisite 1 year threshold to make such a claim, but she did consider pursuing an adverse action claim instead. BlandsLaw have commented about the nature of adverse action claims previously. You can view our latest adverse action claim article here.
Any termination that is not face to face, or at the very least, does not give the employee the ability to respond to the reasons for a termination or the right to have a support person present at any disciplinary meeting will breach the law. Firing via text, or email for that matter, is not an illegal action on its own, but can give rise to legal problems down the track.
In a recent article, we outlined some tips for employers when disciplining their staff. In summary, these included,
• Having a rigorous and regular performance management regime;
• Being consistent when dealing with analogous circumstances;
• Allowing access to a witness or support person at any disciplinary meetings;
• Adopting a suitable forum for discussion; and
• Affording the opportunity of a right of reply.
The lesson from employers from the recent FWA case outlined above reinforced this notion that these steps should all be part of the disciplinary procedure process which, in some cases, may lead to a termination. Using text messages or emails to conduct disciplinary proceedings and terminations should be avoided at all costs.[ipaper id=74089505]