We recently reported on a dismissal which came about following
an employee's posting on Facebook of objectionable remarks
about a fellow employee. A recent NSW case, Brett
Ltd, dealt with a complaint that dismissal by text message
was unfair on the basis that it was "harsh, unjust or
unreasonable" under section 385 of the Fair Work Act 2009.
The Applicant was a spray painter/foreman whose duties included
maintaining correct levels of stock, including a paint additive
(Silane) which allows the paint to adhere to glass used in kitchen
splashbacks. He had noticed that the stock of Silane was getting
low and arranged to order more. However, it soon became clear that
there would be a delay in receiving the stock and it eventually ran
out before the new stock arrived. The Applicant maintained that he
therefore had to choose between stopping production or continuing
without the additive. He continued without it.
Some weeks later, as he was about to fly out of Australia on
holiday, he received an irate text message from the Managing
Director pointing out that several jobs were defective and the
remedial costs were around $74,000. A subsequent text message
informed him that he had been summarily dismissed. The Applicant
called him and was told that they would talk when he returned from
his holiday, but when he did so, the dismissal was confirmed.
The Applicant maintained that he had not been given a proper
opportunity to explain his position and defend his decision to
continue spraying without Silane. He also argued that it was
inappropriate to dismiss him whilst on leave and by text message.
He said that he had made the decision to ensure production. The
company argued that he had deliberately put its reputation and
profitability at risk. It admitted that it had informed the
Applicant of its decision by text but said that it was necessary to
do so as he was on leave and about to go overseas.
FWA was satisfied that the Applicant was responsible for
maintaining adequate stocks of Silane and that when it ran out, he
made a conscious decision to proceed without it. The consequence
was that the Respondent was put to significant expense in making
good the defective products and his actions had threatened its
reputation. The decision to proceed without additive was the
Applicant's alone and it followed that there was a valid reason
to dismiss him and furthermore he was notified of that reason.
Whilst a face to face meeting might have been desirable, the
Respondent needed to resolve the matter as quickly as possible.
Whilst affirming that termination by text is generally
inappropriate, the decision shows that there can nevertheless be
exceptions. FWA felt that a face to face meeting would probably
have made no difference as there was unlikely to be anything the
Applicant could have told the Respondent that was not covered in
the telephone conversation.
It is worth remembering that on those rare occasions when
communications between employer and employee need to take place by
text, particular care should be taken over the wording. What may
seem appropriate in the moment might not look as good when
subsequently pored over by the lawyers.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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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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