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Is It Illegal To Sack An Employee Via Text?

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8 Aug, 2019

Sacking an employee is one of the most challenging HR tasks any manager undertakes. With all the changes to communications styles, with a greater reliance on text, Facebook Messenger, Yammer or WhatsApp as forms of team communication, can they be used to communicate that an employee has been dismissed?

In Australia, there is no specific provision under Fair Work legislation that dismissals cannot be done electronically.

However, there have been a number of recent cases before the Fair Work Commission that have found that dismissal via text is harsh and unreasonable.

In the decision of Kurt Wallace v AFS Security 24 7 Pty Ltd (U2019/1622) handed down on the 28th June 2019, Commissioner Cambridge found “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. Even in circumstances where text message or other 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.”

‘The procedure that the employer adopted whereby it advised the applicant of his dismissal by way of text message, and which was for undisclosed reason, was plainly unjust, unreasonable, harsh, and, unconscionably undignified. The dismissal of the applicant with such perfunctory disregard for basic human dignity reflects very poorly upon the character of the individual or individuals responsible.’

In the decision of Van-Son Thai v Email Ventilation Pty Ltd (U2018/9896) handed down on the 27th June 2019, Deputy President Sams found ‘The applicant was notified of his dismissal in a text message from Mr Vilches sent to him on 30 July 2018; see: [1] above. 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. 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.’

In other words, the courts have found that unless exceptional circumstances apply, dismissals should always be done in person and not via text or email.

Where there is a genuine concern for the physical safety of the employer or other employees in the workplace from the employee being dismissed, then consider a virtual face-to-face meeting using Zoom, Skype or other system rather than via text or email.

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HR Author and Lecturer with over 25 years' experience in human resources and workplace relations in Australia. Lead Author of Instant HR Policies & Procedures, NDIS Direct Employment HR Manual, and Employee Performance Reviews: Tips, Templates and Tactics.

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