By Charles Power
You must not terminate an employee’s employment unless the employer has given the employee written notice of the day of the termination (s 117(1) of Fair Work Act 2009 (Cth)). Written notice includes sending the employee an email, SMS, WhatsApp or Facebook message, provided that:
- at the time notice was given, it was reasonable to expect the employee could readily access the message; and
- the employee consents to the information being given in this way (s 9 of Electronic Transactions Act 1999 (Cth)).
Therefore, if you are going to reply on email or social media as a means to convey messages to employees, this should be made clear in employment contracts and/or policies about use of online technology.
Sometimes, it is not possible to communicate with employees face to face about significant matters. For instance, if an employee is absent on leave and there is a need to proceed with a process of consulting about an organisational restructure, or investigating alleged misconduct, electronic communications may be necessary.
Even in an organisation where information between employers and employees is regularly conveyed electronically, the Fair Work Commission expects notice of dismissal to be delivered face to face.
The key risk with dismissal by way of text message is that it clearly deprives the employee of any opportunity to respond and offer explanation or defence about any of the issues that may have contributed to the decision to dismiss. The opportunity to put a case, face to face, to the decision maker is a requirement for procedural fairness, and a failure to do allow this will make the resulting dismissal invariably unfair.
Employees should be given an opportunity to respond to possible grounds of dismissal before a final decision is taken, and this is best done in face-to-face meeting. Requests for a support person to attend should be granted. If, after considering the employee’s response, a decision to dismiss is taken, the employee should be given a dismissal notice in person.
The only circumstances in which notice of dismissal might be sent by text or email is where:
- it is common practice for employee communications to be sent in this way (and ideally this should be reflected in appropriate provisions in policies and contracts); and
- the employee has been given a reasonable opportunity in writing to respond to the grounds for dismissal, either in writing or in person. The in-person requirement can be waived if there is a real prospect the employee will behave in an unacceptable manner at the meeting, or the employee is unable to attend in person because of physical distance.
In Jones v Karisma Joinery Pty Ltd (2020), a shopfitter with more than 5 years’ service had a history of argumentative and abusive behaviour. He was dismissed for an abusive telephone call with his supervisor after he failed to follow a direction as to where to park his vehicle at the factory. The Fair Work Commission accepted the employee’s conduct provided a valid reason for dismissal, but ruled that the use of email made the dismissal unfair because it denied him an opportunity to give his version of the telephone call he had with the supervisor.
The manager who decided to dismiss the employee was relying on the supervisor’s account of the conversation and should have given the employee an opportunity to provide any explanation including any mitigating factors before deciding whether to dismiss.
The employee’s success was somewhat pyric as the Commissioner determined that the employment relationship would only have continued for another two weeks and the compensation figure should be reduced by half due to the established misconduct of the applicant.