Australia: Breaking up is hard to do - communicating termination of employment

Last Updated: 7 June 2018
Article by Michael Byrnes

HARD CONVERSATIONS

Two of the hardest conversations to have with anyone are ending a relationship and terminating employment.

On the former, the etiquette guide Debrett's gives this guidance on the appropriate method of communication:

"Always meet up with your (soon-to-be-ex) partner; email and text are a savage and brutal mode of relationship torture".

Similarly, employers can find the task of communicating the decision to terminate employment particularly difficult. As with those seeking to end personal relationships, some managers try to minimise the emotional impact by avoiding informing the employee of the termination decision in person. Alternative methods used include phone, text or email.

In the recent Fair Work Commission (FWC) decision of Anita Cachia v Scobel Pty Ltd ATF The S & J Trust t/a Emerse Skin and Laser [2018] FWC 2648, a decision regarding an unfair dismissal application where the Small Business Fair Dismissal Code applied, Deputy President Sams, in rejecting that application and finding the dismissal not to be unfair, nevertheless made the following observation:

"If there be one criticism of the process it is this. Mr McLennan informed the applicant of her dismissal by phone. I do not consider that informing an employee of their dismissal by phone, text or email, to be an appropriate means of conveying a decision which has such serious ramifications for employee. As there had already been one meeting with Mrs McLennan, I can see no reason why a further meeting could not have been organised for the purpose of explaining the respondent's decision and discussing the termination arrangements. That said, I accept the respondent has no human resource or industrial relations expertise or experience and had relied on the Commission's Website information and the terms of the Code to effect the applicant's dismissal. I note that there is no stated requirement in the Code (or the Code's checklist) that the employer must convey the dismissal decision, in person. However, I consider it would only be in rare circumstances that a decision to dismiss an employee should not be conveyed in person. For example, it may be necessary where the employer believes a dismissed employee might be a threat to the safety of his/her employees or because the employee expressly did not want a "face-to-face" meeting to hear the outcome of any disciplinary process."

Deputy President Sams quoted with approval the following observations made by Commissioner Cambridge in the decision of Knutson v Chesson Pty Ltd t/a Pay Per Click [2018] FWC 2080:

"The employer provided notification of dismissal by email communication sent at 8.53 pm on 6 November 2017. Notification of dismissal should not be made by email communication. Unless there is some genuine apprehension of physical violence or geographical impediment, the message of dismissal should be conveyed face to face. To do otherwise is unnecessarily callous. Even in circumstances where email or electronic communications are ordinarily used, the advice of termination of employment is a matter of such significance that basic human dignity requires that dismissal be conveyed personally with arrangements for the presence of a support person and documentary confirmation."

FACEBOOK MESSENGER

A similar issue, termination by Facebook Messenger (a function on the social media site akin to text messaging), was canvassed in the case of Ms Jaymi-Lee Morris v Alphaeus Hair Salon [2018] FWC 2642.

In this decision Commissioner Riordan considered a termination of employment that had been effected during a late night Facebook Messenger exchange (reproduced in full in the judgment, replete with insults, expletives and spelling errors).
The exchange was the main evidence considered by the FWC in this case as the Respondent did not participate in the proceedings.

In considering whether the Applicant had been notified of the reason for termination, Commissioner Riordan stated:
"I have taken into account that the "conversation" between the Applicant and Respondent took place over a social media platform late at night. I am unaware of the sobriety or capacity of either individual during this recourse (sic). I find that the Respondent did not provide the Applicant with a reason for her termination."

In respect of the opportunity to respond Commissioner Riordan held:

"The Applicant was not provided with an opportunity to respond to her termination. As previously stated, this discourse occurred over a social media platform and appears to have escalated from a simple enquiry to an unfortunate conclusion. I have taken this into account."

Continuing the theme, Commissioner Riordan on refusal by employer to have a support person noted:

"The conversation was not a disciplinary meeting but what appears to be a regular chat on facebook which spiralled out of control. I have taken this into account."

This decision reinforces the (fairly obvious) proposition that a heated Facebook Messenger exchange is not a proper way to effect termination of employment.

LESSONS FOR EMPLOYERS

  1. In the absence of exceptional circumstances, an employer should inform the employee of a decision to terminate their employment in person; a text, email or phone call will not usually suffice.
  2. The exceptional circumstances that might justify an alternative approach being adopted include where there are geographical impediments or where there is a genuine concern that a security risk arises from informing the employee in person. In such cases, the reasons for not informing the employee in person should be specifically identified and form the basis of the decision prior to the termination being effected, rather than being used as an ex post facto justification.
  3. Where the termination is not being effected in person explore methods which mitigate the impact of adopting such an approach, such as video conferencing.

For further information please contact:

Michael Byrnes, Partner
Phone: +61 2 9233 5544
Email: MJB@SWAAB.COM.AU

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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