Fair Work Commission rejects termination by text message

The Fair Work Commission (the FWC) has reminded employers that terminating employees by text is not appropriate and will often constitute unfair dismissal or attract compensation for the employee.

Two recent cases which were heard before the FWC on consecutive days both considered the issue of termination by text message. Both Deputy President Sams and Commissioner Cambridge delivered scathing rebukes of employers who considered terminating an employee by way of text message appropriate.

Van-Son Thai v Email Ventilation Pty Ltd [2019] FWC 4116 (27 June 2019)

The first case involved an employee, Mr Thai who was dismissed by text message after working for his employer for 12 years, following his refusal to work the same hours with a 22% pay cut.

Upon refusing the lower rate of pay and leaving the workplace, Mr Thai received the following text message: “Effective immediately I give notice of termination of your employment, please note you are required to work your notice period… [you] are entitled to 4 to 5 weeks employment termination notice period”. Mr Thai served his notice period and filed an unfair dismissal application shortly after.

Deputy President Sams labelled the dismissal by text message “disgraceful and grossly unfair” and went on to accuse his employer of having no “sense of common decency”, and of dismissing Mr Thai “in [a] hopeless manner particularly given the applicant’s value to the business and his long period of service.”

The Deputy President requested more evidence from the parties to determine any amount of compensation payable to the employee.

Kurt Wallace v AFS Security 24/7 Pty Ltd [2019] FWC 4292 (28 June 2019)

In the second case, Mr Wallace, a casual security guard, was dismissed by text message after working for AFS Security 24 7 Pty Ltd. Mr Wallace had worked for the employer for 2.5 days a week for approximately 2 years. His employer provided no reason to Mr Wallace for the termination and in defence of its actions submitted that text message was a “normal method of communication” for the company.

Commissioner Cambridge held that notification of dismissal should occur face to face but for the unlikely circumstance of “genuine apprehension of physical violence or geographical impediment”. The Commissioner later criticised the employer’s conduct as “plainly unjust, unreasonable, harsh, and, unconscionably undignified” and a “disregard for basic human dignity”.

Finding that Mr Wallace ought to have been employed for another 6 months, Commissioner Cambridge awarded him over $12,000 in compensation.

Takeaway for Employers

These recent decisions reaffirm the FWC’s clear position that termination meetings should almost always be conducted in person.

If you have any questions about procedurally fair dismissals, please don’t hesitate to contact Nick Stevens, Jane Murray or Angharad Owens-Strauss.

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