Dismissal of an employee by text message (or email)

Published: 20 August 2019

Dismissing an employee can be difficult in any circumstances, which is likely why there is a developing trend of dismissing employees in a non-confrontational way such as text message or email. However, all members should take note that dismissal by text message (and even email) is deemed to be inappropriate by the Fair Work Commission. Any employer who seeks to dismiss an employee by text message may be exposed to an unfair dismissal claim by the employee.

The Fair Work Commission has recently handed down two significant decisions on the dismissal of employee’s by text message. These decisions are briefly set out below:

1. Van-Son Thai v Email Ventilation Pty Ltd [2019] FWC 4116 (27 June 2019)

Mr Van-Son Thai had been employed by Email Ventilation Pty Ltd for 12 years and was requested by his employer to work the same hours that he was currently working with a paycut of 22%. Mr Thai refused the lower rate of pay and immediately left the workplace.

Following Mr Thai’s exit, Mr Thai received a text message from his employer stating:

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

Please note that your (sic) are entitled to 4 to 5 weeks of employment termination notice period’.

In considering his decision, Deputy President Sams said that “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.

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

Mr Kurt Wallace was employed by AFS Security 24/7 Pty Ltd for just over two years as a casual Security Guard. Following some short communication (via text message) regarding Mr Wallace’s rostering arrangements, on 5 February 2019, the employer sent a text message to Mr Wallace as follows:

Effective immediately we no longer require your services as a casual patrol guard with AFS Security.

In handing down a decision, Commissioner Cambridge stated that “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 proper support person and documentary confirmation”.

Take home message

Section 117 of the Fair Work Act 2009 provides that an employer must give written notice of termination to an employee by:

1. delivering it personally; or
2. leaving it at the employee’s last known address; or
3. sending it by pre-paid post to the employee’s last known address.

Employers should ensure that:

1. any dismissal is communicated with the employee face to face, with written notice immediately provided to the employee;
2. they travel to meet with the employee that is subject to the dismissal if they are based on alternative locations to the company’s office/depot; and
3. any dismissal is not communicated by text message (or email).

WARNING: There are other steps that should be undertaken by employers with respect to dismissals prior to the decision to terminate is made, however, this article focuses primarily on the final step of issuing a notice of termination.

As a NECA member, you can access expert HR and IR advice. For more information, please contact NECA Legal’s Senior Associate, Lauren Howe, on 1300 361 099 or email lauren.howe@neca.asn.au.