In Ms Anita Cachia v Scobel Pty Ltd ATF the S & I Trust t/a Emerse Skin & Laser (2018), the Fair Work Commission (FWC) criticised a small business employer for dismissing an employee over the telephone.
In this case, a beauty therapist was dismissed after several complaints were made about her behaviour towards other employees. She humiliated and belittled other staff members and in one instance, forcefully pushed a colleague out of a doorway and slammed a sliding door in her face, nearly causing her to lose her balance.
The employer, after conducting an investigation and gathering evidence, interviewed the employee to discuss the allegations, asking her for reasons why she should not be dismissed.
Unsatisfied with her reasoning, the employer assessed the employee’s abusive and violent behaviour to amount to gross misconduct and dismissed her summarily via telephone. The employee then applied for unfair dismissal remedy.
The FWC held that although the dismissal was justified, the employer’s decision to dismiss her over the telephone was inappropriate.
FWC Deputy President Peter Sams said “I do not consider that informing an employee of their dismissal by phone, text or email, to be an appropriate means of conveying a decision which has such serious ramifications for an employee”.
“As there had already been one meeting with [the employee], I can see no reason why a further meeting could not have been organised for the purpose of explaining [the employer’s] decision and discussing the termination arrangements.
While Deputy President Sams accepted that there is no “stated requirement” in the Small Business Fair Dismissal Code for an employer to “convey the dismissal decision, in person”, he said “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.”
Deputy President Sams said he agreed with Commissioner Cambridge’s statement in Knutson v Chesson Pty Ltd t/a Pay Per Click (2018):
“Notification of dismissal should not be made by email 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 email or 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.”
While Deputy President Sams suggested that an alternative method of communication may be acceptable where the employee poses a threat to the health and safety of other employees, the employee’s abusive and violent behaviour in this case was apparently a not sufficient enough threat to justify the decision to notify her over telephone.
However, he held that the dismissal was justified, stating “the Commission is satisfied that the respondent held a reasonable belief, based on reasonable grounds, that [the employee’s] conduct was sufficiently serious to justify immediate dismissal”.
“In addition, the respondent conducted an investigation and provided [the employee] with an opportunity to respond to the allegations against her. In summary, the Code was complied with … [the employee’s] application for an unfair dismissal remedy must be dismissed,” he said.