To text or not to text? That is the question.

Technology has fundamentally altered the way in which we interact. Five billion people use text messages globally every day.  Socially, it is one of our primary ways of interacting. Staggeringly, if you are dating someone born after 1984, there is a 53% chance that if that person ends your relationship, it will come to an end via some electronic device, rather than a face to face meeting.  Welcome to the modern world.   

For many business people, SMS is one of the primary ways that they interact with their employees when they are not at work.  So if it is becoming normal for romantic relationships to end via SMS, is it appropriate for an employment relationship to end this way?  Last week, two senior members of the Fair Work Commission have independently answered this question with an emphatic ‘No’.

A year ago, a colleague of mine blogged about the issue of face-to-face dismissals, following a dismissal vial email being challenged at the Fair Work Commission. The effect of that blog was to advise our readers of the Fair Work Commission’s view that communicating an employee’s dismissal other than via a face-to-face meeting were only to be used in ‘rare circumstances’. In these two more recent cases last week, the Fair Work Commission has shown us that nothing has changed in the past year.  

In the first case, Kurt Wallace v AFS Security 24/7 Pty Ltd [2019] FWC 4292, Mr Wallace, a casual security guard, was dismissed by text message. AFS Security 24/7 Pty Ltd submitted that as a casual employee they could dismiss Mr Wallace at any time and for any reason. In defending their use of a text message the employer submitted that text messages were the ‘normal method of communication’ for the company and that the preference for text messaging was a ‘generational thing’.

Commissioner Cambridge stated that an employee should be dismissed face-to-face. The use of text messages or other forms of electronic communication should only be used if there is a ‘genuine apprehension of physical violence or geographical impediment’.

The small size of the company and common use of text messages in communicating with its employees did not provide an excuse for the company not to comply with its obligation to communicate the dismissal in person.

The second case, Van-Son Thai v Email Ventilation Pty Ltd [2019] FWC 4116, involved Mr Van-Son Thai, a first class sheet metal worker, who was informed of his dismissal via text message. Mr Van-Son had worked for Email Ventilation Pty Ltd for 12 years and had refused to accept an offer of decreased wages.

Deputy President Sams, another very senior member of the Commission, confirmed the same view as his colleague Commissioner Cambridge, in finding that it is inappropriate to inform an employee of their dismissal via text message, email or phone. It is only in very rare circumstances that it would be appropriate to do so, such as when an employer feels that their safety is threatened.

Further, Commissioner Cambridge and DP Sams expressed that dismissal has a significant impact on employees. Employees should accordingly be treated with dignity and respect during the dismissal process.  Commssioner Cambridge described the actions of the employer in this case as “unnecessarily callous”; DP Sams describing the dismissal in his case as being “disgraceful and grossly unfair”.

In both cases it was found that the termination of the employee was harsh, unjust and unreasonable, and significant compensation orders were made.

What Employers can Learn from these Cases

While it can be a difficult conversation to be having in person, and even though use of electronic methods of communication in business is increasing, an employee should always be informed of their dismissal in person. The size of the business or their main method of communication does not negate this obligation. Basic decency dictates this, and we cannot see this changing any time soon, despite society generally embracing technology more and more each year.

Using electronic means of communicating dismissal should only be used if the employee has been given ample opportunities to meet face to face and refuses to meet or there is a threat to safety or there are geographical limitations.

In our experience from a practical context, providing a courteous and open forum to communicate the employer’s decision, greatly decreases the potential for employees to be aggrieved enough by the outcome to consider challenging the dismissal legally.

A dismissal does not have to be affected in an adversarial or combative manner. Often, having a respectful conversation, which allows the employee to preserve their dignity, can be the best protection against the issue escalating unnecessarily. Even if the employee becomes abusive or emotional, the employer/manager is well advised to remain as calm as possible.

It is also recommended that employers provide the employee with an opportunity to have a support person present. Contrary to common belief, the Fair Work Act does not create a positive obligation to provide this.

The employer only must not ‘unreasonable deny’ the employee a support person. In our experience, however, the best practice is to actively provide an employee an opportunity to have a support person present during a termination or disciplinary meeting. While an employer does not have to unreasonably delay the meeting for the employee to find a support person. If a reasonable request is made, the request should not be refused.

The employer is entitled to impose conditions on who the support person is (for example not a lawyer) and also require a confidentiality agreement to be signed by the support person. The support person is not an advocate for the employee and in most cases should not actively take apart in the meeting. If they do repeatedly interrupt or intervene, it is appropriate to ask the support person to leave.

Final Note

Employees will often bring termination claims where there is no merit, simply because they are aggrieved at the way they have been treated by an employer. Irrespective of the lack of merit, these claims are inconvenient and costly.  At other times, employees will walk away from a potentially valid claim, often because they hold no grudge, and merely wish to get on with their lives.  In our experience, the best protection against potential legal claims arising from termination of employment, is to treat your employees with dignity and respect. We may have become a society of disconnected ‘text-aholics’, but when it comes to the dismissal of an employee, the basic rules of common sense and human dignity still apply.   

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Brian Powles

Brian is an employment lawyer, who has had many years experience in employment and business strategy. Formerly an award winning chef and restaurateur, he built two successful restaurants from scratch, and has advised numerous other business owners on employment, change management, leadership, and adapting to technology. Contact him here.

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