Artboard 1Icon/UI/CalendarIcons/Ionic/Social/social-pinterest

Dismissal by SMS or email may not be unlawful – but it’s extremely unwise

07 October 2020

#Workplace Relations & Safety, #COVID-19

Published by:

Dismissal by SMS or email may not be unlawful – but it’s extremely unwise

An employer must not terminate an employee’s employment unless the employer has given the employee written notice of the day of the termination (section 117(1) of Fair Work Act 2009 (Cth)). Written notice includes sending the employee an email, SMS, WhatsApp or Facebook message, provided that:

  • at the time notice was given, it was reasonable to expect the employee could readily access the message
  • the employee consents to the information being given in this way (section 9 of Electronic Transactions Act 1999 (Cth)).

This means that if an employer is going to rely on email or social media as a means to convey messages to employees, it should make this clear in employment contracts and/or policies about the use of online technology.

Sometimes, it is not possible to communicate face-to-face with employees about significant matters. For instance, if an employee is absent and there is a need to proceed with consulting about an organisational restructure or investigating alleged misconduct, electronic communications may be necessary.

Even in an organisation where information between employers and employees is regularly conveyed electronically, the Fair Work Commission (FWC) expects notice of dismissal to be delivered face-to-face. 

The recent decision of Commissioner Cambridge in Jones v Karisma Joinery Pty Ltd [2020] FWC 5051 is a sharp reminder that non-verbal communication of dismissal will substantially diminish the employer’s prospects of defending an unfair dismissal claim.

Commissioner Cambridge is no fan of employers who don’t end employment in person. In Wallace v AFS Security [2019] FWC 4292 he observed that dismissal by text was “unnecessarily callous”, even in circumstances where text message or other electronic communications are ordinarily used. The Commissioner stated that notice of dismissal “is a matter of such significance that basic human dignity requires that dismissal be conveyed personally with arrangements for the presence of a support person and documentary confirmation.”

The Commissioner concluded dismissal by way of a text message was “plainly unjust, unreasonable, harsh, and, unconscionably undignified” displaying “such perfunctory disregard for basic human dignity [reflecting] very poorly upon the character of the individual or individuals responsible.”

The key risk with dismissal by way of a text message is that it clearly deprives the employee of any opportunity to respond, offer explanation or defence about any of the issues that may have contributed to the decision to dismiss. The opportunity to put a case, face-to-face, to the decision-maker is a requirement for procedural fairness, and failure to do will make the resulting dismissal invariably unfair. 

In some decisions, the FWC has drawn more adverse inferences. In Sokolovic v Modestie Fashion Australia Pty Ltd [2011] FWA 3063, Commissioner Cambridge inferred that because the employer was not prepared to deliver the message themselves, face-to-face, this inferred they did not “have the courage of their convictions” and “in all good conscience, sufficient confidence in the decision to act with any conviction. Consequently if dismissal is implemented by any means other than face-to-face communication both the legal and ethical basis for the decision to dismiss is likely to face strong and successful challenge.”

The FWC recognises that there are some circumstances where a decision to dismiss might be justifiably implemented without the need to provide the employee with a face-to-face opportunity to be heard. These are where an employee committed gross and wilful misconduct that was admitted or undeniably existent and no possible explanation or mitigation could alter the decision. Other circumstances are where there is a genuine prospect of aggression or violence or geographical impediment.

The decision in Jones v Karisma Joinery Pty Ltd concerned an unfair dismissal claim made by a shopfitter with over five years’ service. He had a history of argumentative and abusive behaviour and was dismissed for an abusive telephone call with his supervisor after he failed to follow a direction as to where to park his vehicle at the factory. Commissioner Cambridge accepted the employee’s conduct provided a valid reason for dismissal, but he ruled the use of email made the dismissal unfair because it denied him an opportunity to give his version of the telephone call he had with the supervisor. The manager who decided to dismiss the employee was relying on the supervisor’s account of the conversation and should have given the employee an opportunity to provide any explanation including any mitigating factors before deciding whether to dismiss.

The employee’s success was somewhat pyrrhic in that the Commissioner determined that the employment relationship would only have continued another two weeks and the compensation figure should be reduced by half due to the established misconduct of the applicant.

Lessons for employers

Dismissal meetings should be face-to-face wherever possible. Employees should be given an opportunity to respond to possible grounds of dismissal before a final decision is taken, and this is best done in a face-to-face meeting. In light of COVID-19 restrictions, online videoconferencing platforms would be an acceptable alternative but when in-person meetings are possible that should take preference over videoconferencing.

Requests for a support person to attend should be granted. If after considering the employee’s response to a decision to dismiss is taken, the employee should be given a dismissal notice in person.

The only circumstances in which notice of dismissal might be sent by text or email is where:

  • there is a real prospect the employee will behave in an unacceptable manner at the meeting or the employee is unable to attend in person because of physical distance; or
  • the employee has been given a reasonable opportunity to respond to the grounds for dismissal, either in writing or in person; and
  • it is common practice for employee communications to be sent in this way (and ideally this should be reflected in appropriate provisions in policies and contracts).

Author: Ben McKinley

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Share this