Terminating an employee is a confronting experience. Surely, in the digital age where text, email and instant messaging is commonplace, reducing the personal element of terminating an employee via any one of these less confronting methods is appropriate – right?
The Fair Work Commission says no!
Avoiding face-to-face contact is a “gutless abrogation” of the employer’s obligations unless unusual circumstances apply.
Text Message – “…we no longer require your services…”
In Wallace v AFS Security , Mr Wallace was a casual Security Guard at AFS. In late-January 2019, Mr Wallace sent two text messages to Ms Everett (who was a Director and worked in payroll) – one, raising concerns about his roster; the second, about not receiving payment for a shift he worked a few days before. The first text was answered confirming that it would be discussed the next day. Mr Wallace received a response to the second text a couple of days later when Ms Everett indicated that it would be “fixed up”.
The following week, Ms Everett sent Mr Wallace a text “Effective immediately we no longer require your services as a casual patrol guard with AFS Security.” Mr Wallace texted back “Please explain?” After unanswered texts and phone calls, Mr Wallace drove to the company office to get an answer from Ms Everett but was told he was a casual and no explanation was needed.
Mr Wallace filed an unfair dismissal application.
Mr Wallace was awarded $12,465 in compensation. The Commission found that AFS did not have any reasonable grounds to terminate Mr Wallace’s employment without warning or any notice. The Commission was scathing about the way AFS terminated Mr Wallace’s employment:
“Notification of dismissal should not be made by text message or other electronic communication. Unless there is some genuine apprehension of physical violence or geographical impediment, the message of dismissal should be conveyed face to face. To do otherwise is unnecessarily callous…the advice of termination of employment 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.”
Text message – You’re Off the Roster
In Rahim v Murdoch University Childcare Centre , Ms Rahim was a Childcare Assistant who had worked at the Centre since 10 June 2011 as a casual and then as a part-time employee. In 2015, Ms Rahim sent the Centre Manager, Ms Cannon, a text asking if she could complete a half day the next day, because she had a hospital appointment.
Ms Cannon replied:
“That’s fine. Don’t worry about coming in tomorrow. I have taken you off the roster as you have become too unreliable. All the best.”
Deputy President Sams commented:
“I am appalled that Ms Rahim was dismissed by text message. It was at best, inappropriate and, at worst, a gutless abrogation of an employer’s obligation to act reasonably and decently when ending an employee’s employment.”
Where Exceptions May Apply
The Commission has said, time and time again, that it is not appropriate to terminate an employee via text message, email or any other electronic means unless there is some “genuine apprehension or physical violence or geographical impediment.” These situations are rare and would be an exception to the rule and would be considered on a case-by-case basis.
Another exception may be where the employee is no longer attending work, and the discussion about their future of employment has been conducted by letter or electronic communication, but again this needs to be considered on a case-by-case basis.
Although termination conversations or meetings are awkward and unpleasant for all those involved, it is integral that the decision to terminate an employee’s employment be done face-to-face after observing principles of natural justice. The employer should be clear about the allegations to the employee, providing him/her with the option of having a support person, listening to their version of events, and considering all of the information before coming to a decision.
If you are looking for advice in relation to managing an employee, please contact Coleman Greig’s Employment Law team who would be more than happy to assist: