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Can I be sacked by text message or email?

using a mobile app

Most business communications are conducted by digital or electronic means.  Many employers also use text messaging or messaging apps to communicate with their staff about rosters and to make various announcements.  Consistent with this, some employers have begun to advise employees of their dismissal by way of text message or email.

The Fair Work Commission recently considered this practice in two unfair dismissal cases.  Ultimately, the Fair Work Commission concluded that, unless there was some legitimate reason for advising of dismissal by electronic means – such as a genuine risk of physical violence or some geographical impediment - an employer should notify its employee of their dismissal "face to face".  The Commission considered that it would only be in very rare circumstances that dismissal by text or email would be appropriate.

The recent decisions outlined below indicate that notification of dismissal by electronic or digital means is a factor that the Fair Work Commission may take into account when considering whether a dismissal is harsh, unjust or unreasonable. 

Cases of unfair dismissal by electronic means

Wallace v AFS Security 24/7 Pty Ltd

In this case the worker had been employed by AFS for 2 years as a casual security guard.  One day he raised a query about his employer’s failure to pay him for a particular shift.  A few days later he received a text message from his employer stating "effective immediately we no longer require your services as a casual patrol guard with AFS".  When he asked for an explanation AFS told him that they did not have to provide a reason as he was a casual employee (this is not correct as a matter of law).

The worker lodged an unfair dismissal claim and the Fair Work Commission concluded that:

  • there was no valid reason for the dismissal;
  • the worker was denied "procedural fairness" as he was not given the opportunity to respond to the underlying reasons for his dismissal; and
  • he was notified of the dismissal by text message and did not receive a written confirmation as required by the legislation.

The Fair Work Commission commented that "basic human dignity" required that a decision to dismiss an employee be conveyed in person, unless exceptional circumstances applied.  The worker was awarded compensation.

Van-Son Thai v Email Ventilation Pty Ltd

In the second case, the worker had been employed as a sheet metal worker with the employer for 12 years.  The worker's union raised some questions with the employer about whether the worker was being paid correctly.  Soon after, the employer sent a text message to the worker stating "effective immediately I give notice of your termination of your employment, please note you are required to work your notice period".

The worker lodged an unfair dismissal claim and the Fair Work Commission found that: 

  • there was no valid reason for the dismissal;
  • there was complete lack of natural justice or procedural fairness; and
  • the manner in which the dismissal was carried out was "disgraceful and grossly unfair".

The worker was awarded compensation.

These decisions demonstrate that the method of notification of a dismissal may be a factor that the Fair Work Commission will take into account when deciding whether a dismissal was harsh, unjust and unreasonable. 

At Andersons we absolutely agree with the Fair Work Commission that a decision such as a dismissal, which has significant adverse implications for a worker and their family, should be communicated face to face, purely as a matter of human respect and dignity.

If you believe you have been unfairly dismissed please contact our workplace law team.

Margaret Kaukas 013.jpg

Get in touch with today's blog writer:
Margaret Kaukas

Special Counsel in Employment Law

Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to Australian Federal and South Australian legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.

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