The convenience of social media means that more businesses than ever consider social media applications to be a useful communication tool for their workplace.
In a recent case before the Fair Work Commission (the "FWC"), the question arose of whether removing an employee from a group chat constituted dismissal (read the case here).
The employee commenced casual employment at a patisserie where rostered shifts were published on a weekly basis via a WhatsApp group chat, which included all staff members.
However, the employee experienced a decline in her mental wellbeing six months into her role and the employer's understanding was that the employee was in "no state for work".
After an incident where the employee failed to present for work, the employer attempted to meet with the employee to discuss the employee's views on her capacity to work. However, the employer and employee failed to set up a meeting time due to misaligned schedules and the employee's failure to respond to a text message.
The employer subsequently removed the employee from the employer's WhatsApp group chat, with a view that the employee no longer wished to be employed at the patisserie and had resigned.
In response, the employee filed a FWC claim asserting that the employer had terminated her employment and contravened the general protections provisions. The employee claimed that the principal contributing factor that led to her dismissal was the removal from the WhatsApp group by the employer. It was the employee's view that even if she had resigned, the employer had not taken sufficient steps to confirm her intention to stay employed. However, the employer claimed that the employee had not been dismissed from her employment, and therefore the application should be dismissed.
The FWC was required to determine whether the employee had been dismissed by the employer.
The FWC found that in the circumstances of this case, it was not reasonable for the employer to conclude that the employee had resigned and that the employer's action of removing the employee from the group chat on WhatsApp constituted dismissal. In coming to this conclusion, the FWC noted the following:
- the WhatsApp group was used by the employer to communicate the rosters to staff and without access to the group, the employee could not participate in ongoing employment;
- the employer was on notice about the employee's health issues;
- the employee's failure to respond to a text message was not sufficient to warrant a resignation;
- the employee's absence from work on one occasion was not an indication that the employee wished to resign;
- the employer and employee had not reached an agreement about their meeting time to discuss the employee's employment; and
- the fact that the termination was recorded as a "voluntary cessation" in the employer's payroll system was irrelevant as to whether the employee actually resigned.
This case demonstrates the care an employer must take in dismissing an employee or assuming an employee intends to resign. Assuming an employee intends to resign when they have not expressed it clearly may lead to claims for compensation, penalties or reinstatement (see here for a previous article where an employer hastily accepted a "resignation").