Two recent cases before the Fair Work Commission have highlighted the risk of dismissing an employee via sms text or email.
Both cases resulted in unfair dismissal proceedings being initiated with the employees arguing that they were denied procedural fairness.
In the first case, the male shopfitter had been employed for 5 years. He was verbally abusive to his supervisor and then to his manager who rang him up later that afternoon to seek an explanation.
Two hours after the phone call, in which the employee swore and hung up on his manager, the financial controller of the company terminated the employee via email.
The Commission found that despite the employee having engaged in serious misconduct, the dismissal was unfair because “even argumentative and difficult people” are entitled to an opportunity to provide a response before they are dismissed. (Michael Lyle Jones v Karisma Joinery Pty Ltd [2020] FWC 5051)
In the second case, the female chef was terminated via email for serious misconduct after she had not responded to a “show cause” letter by 5pm. The Club President then sent her a termination letter approximately half an hour later for serious misconduct using his personal email account.
When the employee rang up to enquire about a large sum of money that had been deposited into her account, she was advised by her payroll manager that she had been terminated. The employee responded, “it would have been nice to have been told.”
The Commission found that the employee had been terminated on the date the termination payment was made “which coincided with the time at which [she] was advised of her dismissal by [the payroll manager].”
This meant that the employee was not out of time in bringing her unfair dismissal application.
The Commission specifically warned that “communication of the advice of dismissal by electronic means such as email or text message, should generally be avoided”. (Michelle Rawson v Mudgee Golf Club Ltd [2020] FWC 4813)
Both cases highlight that terminations should be made in person (including via phone or video conference where physical meetings are restricted particularly during the pandemic). If an employer sends an email or text, they should keep a record of the communication, and confirm it with a phone call.
Please contact Better HR if you need assistance in managing difficult disciplinary matters which may result in dismissal.
