The pitfalls of sacking via email

A recent unfair dismissal application has been accepted by the Fair Work Commission, despite being made more than 21 days after the dismissal allegedly took effect. Under the Fair Work Act 2009 (Cth) employees have a strict 21 days after dismissal to file their unfair dismissal application unless exceptional circumstances apply.

The facts

The HR team of Fortescue Metals Group, a subsidiary of The Pilbara Infrastructure Pty Ltd, notified an employee of their dismissal by email on 16 June 2021. The worker had instructed the Company to delete his old email address multiple times as it was no longer used. The worker only checked the old email address when he received a termination payment from the Company on 5 July 2021. An unfair dismissal application was filed six days later.

“Generally, where an employee is advised of their dismissal by email, the presumption is that an employee will have had a reasonable opportunity to become aware of their dismissal if the email is received in the inbox of [their] email address,” Commissioner Williams said.

Commissioner Williams further stated that “In this case the circumstances were that the email was received in an inbox of an email address that was no longer used by the [worker] and this fact was known to the Company”.

The Decision

“Consequently, receipt of this email into that inbox on 16 June 2021 did not amount to the [worker] having a reasonable opportunity to become aware of the dismissal from 16 June 2021, when assumedly the termination of employment letter was sent.”

As a result, the Commissioner said, the dismissal took effect on 5 July rather than 16 June, meaning the worker made his application within time.

The Takeaway

This case demonstrates the difficulties that can arise for employers when they choose to dismiss employees by email communication. Had the dismissal process occurred by way of a meeting or phone call as well as email communication the employee would have been reasonably notified of his dismissal. This would have had the result, that the employee’s late unfair dismissal application would not be able to proceed. It is clear that dismissal of employees by email creates risk for businesses in finalising the termination process, we recommend dismissals to be conducted in person for this reason.

In another case which demonstrates that the Fair Work Commission expects dismissal to be conducted face-to-face. In Wallace v AFS Security Commissioner Cambridge observed that dismissal by text was “unnecessarily callous”, even in circumstances where text message or other electronic communications are ordinarily used. The Commissioner stated that notice of dismissal “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.”

The Commissioner concluded dismissal by way of a text message was “plainly unjust, unreasonable, harsh, and, unconscionably undignified” displaying “such perfunctory disregard for basic human dignity [reflecting] very poorly upon the character of the individual or individuals responsible.”

The key risk with dismissal by way of a text message is that it clearly deprives the employee of any procedural fairness considerations such as: opportunity to respond, offer explanation or defence about any of the issues that may have contributed to the decision to dismiss. The opportunity to put a case, face-to-face, to the decision-maker is a requirement for procedural fairness, and failure to do will make the resulting dismissal invariably unfair.

Dismissal meetings should be face-to-face wherever possible. Employees should be given an opportunity to respond to possible grounds of dismissal before a final decision is taken, and this is best done in a face-to-face meeting. In light of COVID-19 restrictions, online videoconferencing platforms would be an acceptable alternative but when in-person meetings are possible that should take preference over videoconferencing. Conducting a face-to-face meeting (even via video conferencing) prioritises procedural fairness in dismissal and will be looked upon favourably by the Fair Work Commission in comparison to electronic communication.

Requests for a support person to attend should be granted. If after considering the employee’s response to a decision to dismiss is taken, the employee should be given a dismissal notice in person.

The only circumstances in which notice of dismissal might be sent by text or email is where:

  • there is a real prospect the employee will behave in an unacceptable manner at the meeting or the employee is unable to attend in person because of physical distance; or
  • the employee has been given a reasonable opportunity to respond to the grounds for dismissal, either in writing or in person; and
  • it is common practice for employee communications to be sent in this way (and ideally this should be reflected in appropriate provisions in policies and contracts).

If you have any procedural questions about how to properly affect the dismissal of an employee, please do not hesitate to contact Nick StevensLuke Maroney, and Daphne Klianis.

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