What does the Fair Work Commission have to say about this?

Terminating an employee is never easy and can be an uncomfortable experience for both employer and employee. With the rise in the use of technology and working from home arrangements largely required in response to the COVID-19 lockdowns, many employers have taken to using email, text message and instant messaging platforms to communicate with their employees.

But just how appropriate is this in the context of employee discipline and termination?

In the case of Kurt Wallace v AFS Security 24/7 Pty Ltd [2019] FWC 4292, the Fair Work Commission was required to consider this issue. In this case, an employee was a casual employee who had been employed with his employer for a continuous period of 2 years. Following an enquiry regarding non-payment of wages for a shift he had worked the prior week, Mr Wallace’s employment was terminated via a text message which stated, “we no longer require your services.”

This employee was held to have been unfairly dismissed for a variety of factors. In determining the case,

“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. Even in circumstances where text message or other electronic communications are ordinarily used, 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.”

 

Lessons Learnt

Termination via text message or email is not strictly illegal. However, this type of “faceless” email or text message termination is not best practice and may lead to unfavourable outcomes for an employer should a claim be brought against them concerning the termination. Face to face termination is best practice. Where this is not possible arranging a video conference is preferable or having a conversation with an employee concerning the termination before following in up with a formal termination letter.

If you require assistance, Adams & Partners Employment Law Team can help you. Contact us on (02) 4721 6200.

 

Written by Amelia Hatton.

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