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.
