Workplace communication has undergone significant transformation. With smartphones and remote work becoming the norm, many employers are tempted to utilise electronic methods like phone calls, SMS, or email to convey critical information, including employee dismissals. However, recent rulings by the Fair Work Commission (FWC) have brought to light the potential risks tied to using these channels for termination. This article considers the legal framework surrounding electronic dismissals in Australia, reviews pertinent case law, and offers guidance for employers navigating this intricate issue.
The Legal Framework
While Australian Fair Work legislation does not explicitly forbid dismissals communicated through electronic means, the Fair Work Act 2009 and the National Employment Standards establish essential requirements for terminating employment, such as notice periods and payment entitlements. These standards are applicable regardless of how the dismissal is communicated.
Additionally, the Fair Work Act mandates that dismissals should not be harsh, unjust, or unreasonable, which is especially relevant when evaluating how the dismissal is communicated. Several factors are considered in determining whether a dismissal is unfair, including:
- The validity of the dismissal reason
- Whether the employee was informed of this reason
- The chance provided to the employee to give their response
- Any unreasonable refusal by the employer to allow a support person during dismissal discussions
While these factors do not specifically address communication methods, recent FWC rulings have generally discouraged electronic dismissals.
Recent Case Law
Recent decisions by the FWC have clarified the inappropriateness of terminating employees via electronic means. These rulings consistently indicate that dismissals conveyed through these channels are generally unsuitable and may lead to findings of unfair dismissal.
Kurt Wallace v AFS Security 24/7 Pty Ltd (2019)
In this case, Commissioner Cambridge sharply criticised the use of SMS for dismissing employees. The ruling stated that dismissals should not be communicated through SMS or other electronic means. Unless there are genuine concerns about physical safety or logistical barriers, dismissals should be delivered in person. Failing to do so is deemed unnecessarily insensitive. The significance of terminating employment necessitates face-to-face communication, with provisions for a support person and formal documentation.
The Commissioner noted that dismissing someone via SMS displayed a fundamental disregard for human dignity and tarnished the reputation of those involved.
Van-Son Thai v Email Ventilation Pty Ltd (2019)
In Van-Son Thai v Email Ventilation Pty Ltd, Deputy President Sams reiterated the unsuitability of electronic dismissals, asserting that informing an employee of their termination via phone, SMS, or email is an inappropriate method for communicating such a consequential decision. He suggested that dismissals should primarily occur face-to-face, with exceptions only in cases of genuine safety concerns or when an employee explicitly requests not to meet in person.
Ms Anita Cachia v Scobel Pty Ltd ATF the S & I Trust t/a Emerse Skin & Laser (2018)
This case involved a small business that dismissed an employee over the phone following an investigation into misconduct. Although the FWC ultimately deemed the dismissal justified, Deputy President Sams criticised the method of communication, stating that informing an employee of their termination through a phone call, SMS, or email is inappropriate given the serious implications for the employee. Furthermore, he emphasised that even if an employee’s behaviour has been problematic, the communication method remains critically important.
Implications for Employers
These cases make it clear that the FWC views electronic dismissals unfavourably. Even when the reasons for dismissal are valid and procedures are correctly followed, using electronic means can lead to findings of unfair dismissal.
Key implications for employers include:
- Prefer face-to-face communication: Whenever feasible, dismissals should be conducted in person. This fosters a more dignified and respectful process, allowing the employee to have a support person present.
- Limited exceptions: The FWC has suggested that electronic dismissals might be permissible only in rare situations, such as genuine safety fears or significant geographical barriers.
- Document the process: Employers should maintain detailed records of all communications and decisions regarding the dismissal, regardless of the communication method.
- Explore alternatives: If in-person meetings are unfeasible due to safety or distance, consider video conferencing as a more personal option than phone calls, SMS, or emails.
- Provide written follow-up: Even when dismissals are communicated in person, employers should send a written confirmation detailing the decision and any relevant information.
Best Practices for Employers
To mitigate the risk of unfair dismissal claims linked to communication methods, employers should adopt the following best practices:
- Create clear policies: Develop and communicate explicit policies regarding dismissal procedures, highlighting the importance of in-person communication.
- Train managers: Ensure all managers and supervisors are well-trained in proper dismissal protocols, particularly the significance of face-to-face communication.
- Plan ahead: When preparing for a dismissal, arrange the logistics for how and where the conversation will take place, aiming for a private, in-person meeting whenever possible.
- Offer support: Allow the employee the opportunity to have a support person present during dismissal discussions.
- Be prepared: Before the dismissal meeting, prepare a script or key points to ensure all essential information is conveyed clearly and compassionately.
- Provide written confirmation: After the in-person meeting, send the employee a letter confirming the dismissal and outlining any relevant details or entitlements.
- Consider alternatives: If in-person communication is genuinely impossible, explore video conferencing as a more personal option compared to phone calls, SMS, or emails.
- Document everything: Keep meticulous records of the dismissal process, including reasons for the decision, investigations conducted, and all communications with the employee.
Conclusion
While technology has made workplace communication easier, the human element remains crucial during employee dismissals. Recent Fair Work Commission (FWC) rulings emphasise that employers must treat employees with dignity and respect, especially in termination situations. Prioritising face-to-face communication and following best practices can help reduce the risk of unfair dismissal claims and promote a respectful workplace culture.
At Felicio Law Firm, our experienced Business Lawyers are here to guide you through the complexities of employee dismissals, ensuring that your dismissal processes are compliant with current regulations. We’ll help you minimise risks while upholding the rights and dignity of your employees. Contact us today for expert legal advice tailored to your business needs.
