The dangers of digital dismissals

Termination of employment by text message found to be "unconscionably undignified", even for small businesses

Two recent decisions from the Fair Work Commission serve as a warning to employers that advising employees via text message that their employment has been terminated is rarely appropriate or considerate.

Case one: Kurt Wallace v AFS Security 24/7 Pty Ltd[1]

AFS Security 24/7 Pty Ltd (AFS) is a small business employer providing security services in New South Wales.

Mr Wallace was employed by AFS for approximately two years as a casual security guard. He had previously been verbally counselled regarding his work performance.

A couple of days after Mr Wallace raised a query about AFS's failure to pay him for a particular shift, he received a text message from Brooke Everett, the wife of AFS's director, which said, "Effective immediately we no longer require your services as a casual patrol guard with AFS Security".

Mr Wallace attempted to contact AFS via text message and telephone to obtain an explanation for his dismissal. He then went to AFS's office and was told by Ms Everett that as he was a casual employee, AFS was not required to provide an explanation.

Mr Wallace did not receive any paperwork regarding the termination of his employment and proceeded to bring an unfair dismissal claim to the Fair Work Commission.

The Commissioner considered that Mr Wallace was a regular and systematic casual employee and, therefore, covered by the unfair dismissal protections in the Fair Work Act 2009 (Cth). The Commissioner found that Mr Wallace had been unfairly dismissed for reasons including that:

• there was no reason for the dismissal given to Mr Wallace or established on the evidence and, therefore, no valid reason for the termination;
• Mr Wallace did not have an opportunity to respond to any underlying reason for the dismissal relating to his performance and conduct; and
• Mr Wallace was notified of the dismissal by text message only, and did not receive documentary confirmation (such as by letter).

In respect of the decision to dismiss Mr Wallace by text message, AFS's director submitted that text message was the normal method of communication at AFS and that, as a "generational thing", people do not use emails these days.

The Commissioner described the method of dismissal as "repugnant", stating that (emphasis added):

"Notification of dismissal should not be made by text message or other electronic 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"

The Commissioner considered that "basic human dignity" requires that dismissal be conveyed personally. This is the case even for small business employers and in circumstances where text message or email is ordinarily used by an employer to communicate with employees.

Mr Wallace did not seek reinstatement and was awarded compensation of $12,465.

Case two: Van-Son Thai v Email Ventilation Pty Ltd[2]

Email Ventilation Pty Ltd (Email Ventilation) is a small business employer which produces and supplies roof ventilation fittings for commercial and industrial construction jobs.

62-year-old Van-Son Thai had been employed by Email Ventilation as a sheet metal worker for 12 years.

Email Ventilation's owner, Javier Vilches, asked Mr Thai to agree to a reduction in his hourly rate of approximately 20% per hour. At around the same time, the Australian Manufacturing Workers Union raised concerns with Mr Vilches about whether Mr Thai was being properly paid by Email Ventilation.

Mr Thai's employment was terminated shortly thereafter. Mr Thai was notified of the termination by a text message from Mr Vilches, which said:

"Effective immediately I give notice of termination of your employment, please note you are required to work your notice period".

Mr Vilches objected to Mr Thai's unfair dismissal application on three conflicting grounds:

• that Mr Thai's employment had been terminated due to redundancy;
• that the employment had not been terminated at the Email Ventilation's initiative; and
• that Email Ventilation had complied with the Small Business Fair Dismissal Code.

All of these objections were dismissed by the Fair Work Commission.

The Commission found that Mr Thai's dismissal was unfair, and it was satisfied that there was no valid reason for the dismissal, noting that the reasons provided by Mr Vilches were not only capricious and fanciful, but also contradictory and irreconcilable.

The Commission noted the complete lack of natural justice afforded to Mr Thai and the "disgraceful and grossly unfair" manner in which the dismissal was carried out. In respect of notification of dismissal by text message, the Commission's Deputy President commented (emphasis added):

"It is not the first time I have had cause to point out that informing an employee of their dismissal by phone, text or email is an inappropriate means of conveying a decision, which has such serious ramifications for an employee. I consider it would only be in rare circumstances that a decision to dismiss an employee should not be conveyed in person".

The fact that Email Ventilation is a small business employer with only a few employees and no industrial relations expertise was no excuse.

Mr Thai sought reinstatement, which the Fair Work Commission did not consider appropriate in the circumstances. Further evidence and submissions from the parties regarding compensation has been requested, which is yet to be determined.

Key takeaways

• In considering whether a dismissal is unfair, the Commission will have regard to whether an applicant was afforded procedural fairness. The way in which the employee is informed of the decision to dismiss them will be relevant here.
• These decisions demonstrate the importance of communicating any termination of employment decision in a considerate and sensitive manner. This will usually mean a face-to-face meeting with the employee, providing an opportunity for the employee to respond to the proposed reasons for termination, and confirming the decision in writing.
• While there will be limited exceptions (such as where there is a safety risk, the employee does not want to meet face-to-face, or there is a geographical barrier to meeting face-to-face), termination of employment by text message or email will rarely be appropriate, even if this has been a common mode of communication during the employment relationship.

1 Kurt Wallace v AFS Security 24/7 Pty Ltd [2019] FWC 4292.

2 Van-Son Thai v Email Ventilation Pty Ltd [2019] FWC 4116.