Australia: Brett Martin v DecoGlaze: Dismissal by text deemed fair

Last Updated: 27 October 2011

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 Martin v DecoGlaze Pty 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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