When texting spells trouble: Unfair dismissal

We often write about unfair dismissal cases to highlight the potential pitfalls to employers: sometimes the ‘rules’ are quite complex and present some grey areas. By way of contrast, the messages in the following case are strikingly simple – you need a ‘real’ reason to dismiss an employee; and text messaging is not an appropriate substitute for a face-to-face meeting.

In Sheppard v Rivershow Pty Ltd [2013] FWC 7829 (14 October 2013) the employee, Mr Sheppard, was a brewery worker for a small brewery near Perth. The employee sent a text to his employer asking when he was going to receive his regular fortnightly pay which was due. The employer responded by text message to say he didn’t know if the employee was paid the day before, and that he was too busy working to process payments. The employee, unhappy with this response, sent a text message to the co-owner, advising of her husband’s message and that the employee needed to speak with her before he would come into work. Mr Sheppard then received a further text from the employer saying that they did not like the way he ‘spoke’ to them and he would no longer be required. The employee lodged an unfair dismissal claim.

No grounds for dismissal

The matter was set for arbitration, and the employer neither attended the hearing nor provided an explanation for their absence. The hearing proceeded with only the employee present. The Commissioner dismissed the employer’s previous claim that the business was not covered by unfair dismissal laws. Turning to the employer’s reason for the dismissal, the employer had apparently taken issue with the wording of the employee’s text which although forthright was deemed neither rude nor aggressive.  The Commissioner described the alleged reason as not ‘sound or defensible’.  In terms of process, he noted that the method of dismissal, namely the text message, did not provide the employee with an opportunity to respond or to have a support person present. The employee was awarded compensation with the amount to be determined at a later date.

Lesson for employers: Dismissal requires sound reasons and process

The key issue in this case was the lack of a real or substantive reason for the employee’s dismissal. An employee’s request for pay that should have been received – even if repeated and forthright – is not a justifiable basis for termination.

We know we are stating the obvious here: text messaging is not always the best communication medium, especially in employer/employee relationships. Notifying an employee of their dismissal by text will rarely, if ever, be appropriate.  For tips on how to discipline employees in ways that do not breach the law, click here.

Sarah Waterhouse, Solicitor, BlandsLaw


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