We recently reported on an unfair dismissal case involving a dismissal via SMS. Sure enough, that dismissal was held to be unfair. Click here to access our previous bulletin.
However, unexpectedly, in Martin v DecoGlaze Pty Ltd Fair Work Australia (FWA) gave the OK to an employer who dismissed an employee via SMS. Hold the smartphone.
In that case, the employee was a spraypainter/foreman for a glass splash back manufacturer. The employee was responsible for maintaining stock including an additive which helps paint adhere to the glass. When the additive supply ran out, and there was a delay in further supply, the employee chose to go ahead with painting jobs without the additive. By doing so, the employee created defective work which would cost the employer approximately $74,000 to replace.
A week later, as the employee was about to fly overseas on a holiday, he received SMSs from the employer chastising him for not using the additive, informing him of the rectification costs and informing him he had been instantly dismissed. They had a telephone conversation during which the employer said they would talk further when the employee returned from holidays. On the employee's return, the employer informed him that he had been dismissed.
FWA held that the employee's conduct in deciding not to use paint without the additive was an act of misconduct and a valid reason for dismissal as it was a deliberate move and threatened the employer's reputation and viability with customers and clients. The dismissal was held not to be unfair.
What about procedural fairness and affording the employee an opportunity to respond? Indeed. FWA did state that in "most situations, termination of employment by telephone texting is not appropriate". FWA held that while it might have been better if there was a face to face meeting, the outcome probably would have been the same. This was because it was not the employee's case that there was anything else he could have told the employer which would have impacted on the employer's decision to terminate. FWA also found it was "understandable for the employer to get to the bottom of the issue quickly to minimise potential problems with customers".
While the SMS dismissal may not have been unfair in this case, the decision is very particular to the facts. Our view remains that old school communication is the preferred method for disciplinary matters and procedural fairness ought not be ignored. We'll leave the texting to Warnie for now.
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