Dismissal by Text Message

13 November 2016

A major transport company is alleged to have dismissed almost 100 employees by text message and email. This conduct has been criticised by unions and Labor parliamentarians. Proceedings have been commenced in the Fair Work Commission (“the Commission”) which appear to in part concern the method that the employees were notified of their dismissal. It appears that the parties have agreed to attend a private settlement conference to attempt to resolve the dispute.

This case raises the question of how can notice of termination be given and what may be the consequences to an employer if it provides an employee with notice in an unconventional manner.

Section 117 of the Fair Work Act 2009 requires written notice to be provided to an employee prior to their termination. Where that termination is to occur prior to the relevant notice period expiring then the worker must be paid pay in lieu of notice for the relevant notice period.

Where an employer terminates an employee by text message, facebook or social media message, or some other impersonal method the Commission may consider that to be discourteous  to the employee. That may make the Commission more likely to find that a dismissal was “unfair, harsh and unreasonable” and therefore find that the employee was unfairly dismissed. The best practice is therefore to provide an employee with written notice via a letter that is delivered to them personally.

A further problem with delivering notice of termination by text message or social media is that you cannot be sure that the terminating employee received the notice. For example, their phone number may have changed or they are not active social media users. If the employee did not receive the message than the notice period will not have commenced and, if the employee was to be dismissed immediately, they will not actually have been dismissed.

We recommend that employers contact us before they dismiss an employee so that we can work through with them all the potential issues and minimise the chance of an unfair dismissal application.

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