Ter­mi­na­tion of employ­ment by SMS fails the fair­ness text

Tex­ting Times for Employers

In two recent unfair dis­missal deci­sions, the Fair Work Com­mis­sion (FWC) has con­demned the prac­tice of ter­mi­nat­ing employ­ment by text message. 

In the deci­sion of Kurt Wal­lace v AFS Secu­ri­ty 24 7 Pty Ltd (U2019/1622), Com­mis­sion­er Cam­bridge con­sid­ered the sub­mis­sion by the employ­er in respect of a ter­mi­na­tion by text, which was:

‘…that text mes­sage was the nor­mal method of com­mu­ni­ca­tion with the com­pa­ny, and that as a gen­er­a­tional thing, peo­ple don’t use emails these days, and if they did, it would take a long time for peo­ple to respond. Mr Everett said that the appli­cant pro­duced evi­dence that showed that text mes­sage was the method by which com­mu­ni­ca­tions were made with­in the company.’

In reject­ing this sub­mis­sion Com­mis­sion­er Cam­bridge made some gen­er­al obser­va­tions about the man­ner in which a ter­mi­na­tion of employ­ment should be effected: 

‘The employ­er noti­fied the appli­cant of his sum­ma­ry dis­missal by way of text mes­sage, and it did not pro­vide any doc­u­men­tary con­fir­ma­tion of the noti­fi­ca­tion of dis­missal in the form of a ter­mi­na­tion of employ­ment letter. 

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.’

Lat­er in the judg­ment he was even more emphat­ic in his crit­i­cism of the noti­fi­ca­tion of ter­mi­na­tion by the employer: 

‘The pro­ce­dure that the employ­er adopt­ed where­by it advised the appli­cant of his dis­missal by way of text mes­sage, and which was for undis­closed rea­son, was plain­ly unjust, unrea­son­able, harsh, and, uncon­scionably undig­ni­fied. The dis­missal of the appli­cant with such per­func­to­ry dis­re­gard for basic human dig­ni­ty reflects very poor­ly upon the char­ac­ter of the indi­vid­ual or indi­vid­u­als responsible.’

By coin­ci­dence, the day before the judg­ment of Com­mis­sion­er Cam­bridge was hand­ed down (28 June 2019), Deputy Pres­i­dent Sams deliv­ered the deci­sion in Van-Son Thai v Email Ven­ti­la­tion Pty Ltd (U2018/9896), which also addressed the issue of ter­mi­na­tion by text mes­sage. The coin­ci­dence was not only tem­po­ral – there was also an align­ment of views with Com­mis­sion­er Cam­bridge in respect of such terminations. 

Deputy Pres­i­dent Sams observed:

‘The appli­cant was noti­fied of his dis­missal in a text mes­sage from Mr Vilch­es sent to him on 30 July 2018; see: [1] above. It is not the first time I have had cause to point out that inform­ing an employ­ee of their dis­missal by phone, text or email is an inap­pro­pri­ate means of con­vey­ing a deci­sion, which has such seri­ous ram­i­fi­ca­tions for an employ­ee. I con­sid­er it would only be in rare cir­cum­stances that a deci­sion to dis­miss an employ­ee should not be con­veyed in per­son. For exam­ple, it may be nec­es­sary where the employ­er believes a dis­missed employ­ee might be a threat to the safe­ty of his/​her employ­ees or because the employ­ee express­ly did not want a ​‘face to face’ meet­ing to hear the out­come of any dis­ci­pli­nary process.’

Sams DP then quot­ed, with approval, the deci­sion of Knut­son v Ches­son Pty Ltd t/​a Pay Per Click [2018] FWC 2080, in which Com­mis­sion­er Cam­bridge (once again) held:

‘The employ­er pro­vid­ed noti­fi­ca­tion of dis­missal by email com­mu­ni­ca­tion sent at 8.53pm on 6 Novem­ber 2017. Noti­fi­ca­tion of dis­missal should not be made by email 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 unnec­es­sary cal­lous. Even in cir­cum­stances where email or 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.’ 

Dig­ni­ty v Technology

The author­i­ties are clear: in the absence of excep­tion­al cir­cum­stances, a ter­mi­na­tion of employ­ment should be con­veyed per­son­al­ly in a face-to-face meet­ing. What are the excep­tion­al cir­cum­stances? These include:

• a gen­uine­ly held health and safe­ty fear if the employ­ee is on the premis­es when noti­fied of their ter­mi­na­tion of employment; 
• the employ­ee either request­ing not to have a face-to-face meet­ing or refus­ing to attend such a meet­ing; and
• where the loca­tion of the employ­ee ren­ders such a meet­ing high­ly impractical. 

Even where these (or oth­er excep­tion­al) cir­cum­stances exist, noti­fi­ca­tion should be pro­vid­ed by a tele­phone call (or video mes­sag­ing call), rather than text (or sim­i­lar method such as What­sApp or Face­book Messenger). 

There have been some recent reports that a tech­nol­o­gy com­pa­ny has imple­ment­ed an auto­mat­ed sys­tem in the Unit­ed States that warns employ­ees and even ter­mi­nates employ­ment for poor per­for­mance with no human involve­ment what­so­ev­er. Giv­en the obser­va­tions of the FWC it is hard to imag­ine such a sys­tem ever being suc­cess­ful­ly imple­ment­ed in Aus­tralia. no mat­ter how sophis­ti­cat­ed or advanced the under­ly­ing technology. 

It is always worth remem­ber­ing that just because tech­nol­o­gy enables an employ­ment process to be under­tak­en in a poten­tial­ly more expe­di­ent, effi­cient or eas­i­er way, does not mean the law will endorse such an approach.