While electronic means of communication have resulted in the lines of communication in the workplace flowing more freely, a series of recent decisions in the Fair Work Commission have made it abundantly clear that employers must avoid dismissing employees via text message, telephone or email.
The Fair Work Commission has taken the view that communications surrounding termination of employment are of such significance, that to conduct them electronically will not provide an employee with the required level of human dignity.
This position was demonstrated in the recent decision of Kurt Wallace v AFS Security24/7 Pty Ltd [2019] FWC 4292, in which the Fair Work Commission described an employer’s conduct as “unconscionably undignified” when it terminated an employee’s employment, effective immediately, in a one-sentence text message.
The Fair Work Commission held that the dismissal was unfair and ordered the employer pay the employee $12,456 in compensation.
In the AFS Security case, the Fair Work Commission made it clear that, except for extreme circumstances, for example where a real apprehension of violence exists, employers must ensure that communication of a dismissal occurs in person.
Therefore, in an unfair dismissal context, the risk of proceeding to dismiss an employee via electronic means is that the Fair Work Commission will possibly find the dismissal to be harsh, unjust or unreasonable pursuant to section 387 of the Fair Work Act 2009 (Cth).
The AFS Security case and related decisions show that an unfavourable – and potentially costly – finding is highly likely if these warnings are ignored.
Key take-aways for employers:
In the vast majority of cases, employers must ensure that the decision to dismiss an employee is conveyed in person.
Only in rare circumstances will it be appropriate for employers to utilise text messages, email or telephone to convey the decision to terminate an employee’s employment.
While managing dismissals can be difficult, Cowell Clarke’s Employment and Workplace Relations team can guide you through each step in this process, click on the following link to Contact Us.