Important lessons:
1. A text message (or, not responding to a text message) can amount to a constructive dismissal
In Mrs Carmen-May Olver: Mrs Linda Waldron v Perrotts Cartage Pty. Ltd. T/A Coast Cat Excavations [2019] FWC 4901, two casual employees alleged they were unfairly dismissed after they were sent a text message by their employer stating that there was "no work" for them and inviting them to meet with their supervisors the next day. There was no response to their subsequent text replies to the employer seeking further information.
The employer raised a jurisdictional argument that the two casual employees had not been dismissed and therefore were not entitled to make an unfair dismissal application. The business further submitted that neither employee had taken significant steps to set up the meeting, and had simply resigned to start their own competing business.
The FWC disagreed, and ultimately found that the text message, coupled with the lack of response by the business, gave rise to a dismissal at the employer's initiative and that such dismissal was unfair.
2. Just because it's the norm, doesn't mean it's right
In Wallace v AFS Security 24/7 Pty Ltd [2019] FWC 4292, AFS Security argued that communicating via text message in business was a common "generational thing" and that "people don't use emails these days".
The FWC accepted that AFS Security operated a with a significant level of informality, however this did not extend to what it viewed to be a "repugnant process" wherein an employer is permitted to dismiss an employee without any prior discussion or indication that his/her employment could be terminated. The employer was ordered to pay the employee over $12,000 in compensation.
3. A dismissal via email may be justified where there are well-founded safety concerns
In Hanna v Home Care Assistance [2019] FWC 4637, the FWC held that an employee's dismissal via email by the employer was justified due to well-founded safety concerns. The FWC accepted evidence that the employee had screamed abusive and threatening words at colleagues and left the office in a highly agitated state.
Despite finding in favour of the employer in these circumstances, the FWC still warned that sacking via email "should, as a general rule, be strenuously avoided".
Key take-home messages for employers:
Communicating a dismissal via text/email should only ever be a last resort and is no substitute for procedural fairness. The employer must ensure that it:
- notifies the employee of the reason for the dismissal (or, makes clear that the text message does not in and of itself constitute dismissal);
- notifies the employee that their employment is at stake, where dismissal is possible;
- provides the employee with the opportunity to respond to any concerns related to performance or conduct (unless there are compelling safety reasons not to do so); and
- considers the response before proceeding to terminate.
For more information, please do not hesitate to contact a member of DWF's Employment, Safety & Regulatory Team.
We would like to acknowledge the contributions of Nicole Davis and Brittany Turner.
