There’s no doubt that text messaging or SMS is a mode of communication that’s gaining popularity in the business sector. But there’s one business transaction that should never be made via text, and that is the dismissal a staff member or termination of employment.
Recent court cases have highlighted the risk that employers who give into the temptation of dismissing a staff member by text rather than providing a face-to-face meeting could be vulnerable to an unfair dismissal claim.
Keypoint Law states in their article Can you dismiss an employee by phone, SMS or email? “In our personal experience, we have been involved in a significant number of matters before the FWC where there may be a completely valid and justifiable reason for the dismissal, but the employer fails to undertake a proper termination process, resulting in the dismissal being found to be harsh, unjust or unreasonable. To that end, we note that there can be some real risk for employers when terminating an employee other than by a face-to-face meeting and we have undeniably noticed a steady increase in cases before the FWC where unfair dismissal claims have been upheld because of some procedural defect in the termination process.”
The recent cases regarding procedural defects include:
- Van Son Thai v Email Ventilation Pty Ltd  FWC 4116;
Kurt Wallace v AFS Security 24/7 Pty Ltd  FWC 4292;
- Ms Anita Cachia v Scobel Pty Ltd ATF the S & I Trust t/a Emerse Skin & Laser(2018); and
- Knutson v Chesson Pty Ltd t/a Pay Per Click (2018).
In the decision of Van-Son Thai v Email Ventilation Pty Ltd (U2018/9896) handed down on the 27th June 2019, Deputy President Sams found ‘The applicant was notified of his dismissal in a text message from Mr Vilches sent to him on 30 July 2018… 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. 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.’ 
“In Wallace v AFS Security 24/7 Pty Ltd  FWC 4292, it was said that dismissing an employee should not be communicated by text message, unless there is a ‘genuine apprehension’ of physical violence or some ‘geographical impediment’. Rare circumstances include the dismissed employee being considered a threat to the safety of other employees, or where the employee has expressly stated they did not want a face-to-face meeting.” 
Dismissing an employee by phone fares no better. In the case,
In Ms Anita Cachia v Scobel Pty Ltd ATF the S & I Trust t/a Emerse Skin & Laser(2018), “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”.
Even terminating an employee by email can be problematic according to Knutson v Chesson Pty Ltd t/a Pay Per Click (2018):
“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” 
So, what is the right procedure for dismissing an employee?
An employer should take all steps to ensure that the termination of an employee due to their conduct, performance or capacity is not harsh, unjust or unreasonable.
An employer should:-
- Give the employee warning about his or her unsatisfactory conduct or work performance before dismissal, and notice that unless improved the employee may be dismissed;
- Allow the employee an appropriate period to improve his or her performance or conduct before dismissal;
- Give the employee notice of the reasons for dismissal and an opportunity to respond before dismissal;
- Allow the employee to have a support person present during discussions if requested.
You should keep records of all correspondence and detailed file notes on discussions relating to staff dismissals and terminations.
The Fair Work Ombudsman offer’s a handy checklist called “The Small Business Fair Dismissal Code and Checklist” to assist Small Business Owners work through the correct procedure for dismissing an employee.
What is the right way to communicate?
The cases cited above have stressed the requirement for treating an employee with dignity and courtesy. Even though there is no specific provision within the law that says you cannot dismiss an employee via text, it is best not to do so if you want to avoid a potential unfair dismissal claim by a disgruntled employee.
MDC legal recommends that any dismissal should be communicated face to face and you can view their employee dismissal guidelines here.
Other Employment Resources
In a recent case before the Fair Work Commission (FWC), Credit Corp Group’s adherence to the correct protocol for employee terminations made it easier for the FWC to conclude that the dismissal of Cameron Little was lawful. They followed this procedure.
SBS has been the subject of a great deal of media attention for the sacking of Scott McIntyre. SBS’s managing director, Michael Ebeid made the decision to sack Scott McIntyre immediately and without notice. This raises questions about whether the dismissal was fair and lawful.