An employee has walked away approximately $10,000 richer after
being dismissed via SMS. Now that's an expensive text.
A casual employee swapped a shift with a co-worker. Then she
turned up an hour late, and during that time, some items of
clothing were stolen from the store. The employer wasn't happy.
So a couple of days later – without discussing the matter
with the employee – he shot off an SMS:
"Sedina, I have let you go for two reasons. Firstly you
shouldn't swap the shift without letting me know. Secondly you
even swap the shift you start one hour late knowing it will be busy
and leaving Ivanna alone. That shows me you not taking me serious
or the work. Which hurts me enough and you can pick your pay
tomorrow and drop the key. You don't need to call me and I
don't see that we can work together. This decision is made by
Robert and I. Thank you for everything."
The employee filed an unfair dismissal application with Fair
Work Australia (FWA).
But she's a casual, I hear you say. Not so fast. Just
calling an employee a "casual" does not make them so. FWA
ultimately accepted that she had worked regularly and
systematically for 2 years and had an expectation of ongoing work.
So she was eligible to bring a claim.
FWA held that depriving an employee of an opportunity to respond
was unfair. The Court also said "Consequently, if
dismissal is implemented by an means other than face-to-face
communication, both the legal and ethical basis for the decision to
dismiss is likely to face strong and successful
challenge..." Indeed, this is not the first time FWA has
been critical of using SMS as a termination tool. In an earlier
decision, FWA made clear that terminating an employee by SMS would
be "a factor indicative of unfairness".
Convenient? Yes. A good way to avoid an unfair dismissal
In defending any unfair dismissal claim, being able to
demonstrate that the employee has been provided an opportunity to
respond is key. To that end, old school communications like face to
face discussions and written correspondence remain the way to
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
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