Communication made easier by text message but not made right
Although modern businesses use many communication methods to interact with employees and clients, consideration needs to be given to the communication methods used when dealing with employment and industrial relations issues. This is particularly relevant when dismissing an employee. Two recent decisions by the Fair Work Commission serve as reminders of the risks associated with dismissing an employee by text message. Dismissals should be communicated face-to-face wherever possible and employers should only dismiss employees by text message in rare circumstances.
RECENT CASES ARE REMINDERS FOR EMPLOYERS
In Thai v Email Ventilation Pty Ltd  FWC 4116, Deputy President Sams said that dismissal by text message was a factor that contributed to the dismissal being harsh, unjust or unreasonable. Due to the serious consequences of dismissing an employee, it is inappropriate to convey dismissal information by phone, text or email.
In Wallace v AFS Security 24/7 Pty Ltd  FWC 4292, it was said that dismissing an employee should not be communicated by text message, unless there is a 'genuine apprehension' of physical violence or some 'geographical impediment'. Rare circumstances include the dismissed employee being considered a threat to the safety of other employees, or where the employee has expressly stated they did not want a face-to-face meeting.
In this case the employer argued text messages were a common method of communication within their business, and employees' limited use of emails was a 'generational thing'. Commissioner Cambridge rejected this argument. He said that termination of an employee 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'.
REMINDERS FOR EMPLOYERS
Cases such as those mentioned provide a useful reminder for employers about the appropriate communication channels to use when dismissing an employee.
- communicate dismissal to an employee face-to-face, wherever practicably possible
- consider travelling to the employee's location to communicate the dismissal, particularly where there are geographical barriers. If travelling to the employee's location is not practical, a telephone call or videoconference may be the next best option.
- not dismiss an employee by text message, unless there is no other reasonable alternative
- provide the employee with a letter confirming their dismissal following the face-to-face conversation, and if the employee declines a meeting, send a letter by courier or registered post to their residential address, or the address they have provided for notices. Note 2 to section 117 of the Fair Work Act 2009 (Cth) provides: Sections 28A and 29 of the Acts Interpretation Act 1901 provide how a notice may be given. In particular, the notice may be given to an employee by:
- delivering it personally; or
- leaving it at the employee's last known address; or
- sending it by pre-paid post to the employee's last known address.
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.