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
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
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.
Questions? Please give us a call.
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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.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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