OMG UR fired — by text message

Author Mike Toten 20 Mar 2012
   Revised: 21 Mar 2012
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Dismissing an employee by text message can be considered inappropriate and rude, but does such a method expose the organisation to a claim of unfair dismissal?

Two decisions on this issue from Fair Work Australia (FWA) suggests it is an unwise, but not necessarily ‘fatal’, thing to do, and, ultimately, it will depend on the individual circumstances of the case.
 
Section 117  of the Fair Work Act 2009 states that an employer must not terminate an employee’s employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given). A text message would seem to qualify as written notice, but there are a number of other issues that should be considered.

What constitutes a ‘fair’ dismissal?
 
When deciding whether a dismissal was unfair, FWA is required to consider each of the following factors:
  1. whether there was a valid reason for dismissal related to the employee’s capacity or conduct
  2. whether the employee was notified of that reason
  3. whether the employee received an opportunity to respond to that reason
  4. whether the employee had received any previous warnings concerning job performance or conduct
  5. whether the employer had unreasonably refused to allow the employee to have a support present at any dismissal-related discussions
  6. the degree to which the size of the employer’s business would be likely to affect the procedures used to implement the dismissal, and the degree to which the absence of a dedicated HR specialist in the organisation would be likely to affect them
  7. any other matters that FWA considers relevant.
None of the above factors is essential, but FWA is required to consider the importance of each of them and make a decision based on the overall circumstances of the case.

At first glance, dismissing an employee by text message would be in breach of factors 3 and 5, and possibly factor 2, but not necessarily any of the others. Looking at cases decided so far may provide some guidance of the relative importance of each factor.
 
Case 1

  D

ismissal justified

 
In Martin v DecoGlaze Pty Ltd [2011] FWA 6256 (15 September 2011), the employee was dismissed by text message as he was about to leave for an overseas holiday. The dismissal was justified because there was a valid reason for it related to the employee’s job performance, and FWA found that a face-to-face meeting between employee and employer would not have changed the decision to dismiss him.
 
A spray painter/foreman had failed to mix an additive in with the paint used in several jobs, resulting in defective work and customer complaints that cost the employer $74,000 to rectify. The additive had been unavailable at the time, and when the employee notified the production manager of that situation, the latter allegedly left the decision (whether to do the work without using the additive) to the employee.
 
The employee claimed he was dismissed without having an opportunity to defend his actions, and that being dismissed by text while on holiday was inappropriate. However, FWA found that his failure to mix the paint additive amounted to wilful misconduct that caused damage to the employer’s reputation and finances, and it alone provided a valid reason for dismissal. The production manager had played no part in the employee’s decision not to use the additive. The text message had provided a reason for dismissal (customer complaints and costs incurred to remedy defective work) and the employer argued that it was necessary because the employee was not at work and about to go overseas. Written confirmation of dismissal had followed.
 
FWA added that it was necessary for the employer to act quickly and deal with the customer complaints. Waiting until the employee returned from leave to have a face-to-face discussion would not have changed the outcome.

It would appear from this decision that having a valid reason for dismissal was the major factor, and notifying dismissal via text message was no worse than a minor procedural flaw, not enough to outweigh the other issues.
 
Case 2 

D

ismissal not justified 

 
In Sedina Sokolovic v Modestie Fashion Australia Pty Ltd (ABN: 671444920838) [2011] FWA 3063 (18 May 2011), an employee dismissed by text message was awarded almost $10,000 compensation for unfair dismissal. FWA found that the employer had not given the employee an opportunity to respond to allegations of misconduct (factor 3 above) and that the use of a text message showed lack of courage and confidence by the employer in its decision.
 
The employee, a shop assistant, worked an extended shift from 9 am to 12 midnight, and then swapped shifts with the other worker in the store so she could start at 11 am the following day rather than 9 am. However, she was late arriving at work next day and, before she arrived, clothes worth about $5000 were stolen from the store. The employee had sent the manager a text message indicating that she wanted to talk to her about the other employee, but the manager responded with an text message dismissing her, and advising her not to contact her about it. The message gave the reasons for dismissal as swapping shifts without advising her, arriving late for work on the swapped shift and ‘not taking me or the work seriously’. There had been past issues between the pair relating to allegations about job performance, which had been discussed at the time.
 
FWA found that the employer had not identified any serious misconduct that could justify summary dismissal, but the coincidence of the theft from the shop had led the employer to become angry and overreact. Dismissal by text message deprived the employee of an opportunity to respond and offer explanation or defence of the issues raised, and this denied her natural justice.
 
However, it appears from this case that there were many issues that made this dismissal unfair, and it may still have been unfair even if it had not been implemented via text message.

UR taking a risk if U dismiss by text

 
Neither of the cases discussed above provides a definitive ruling on the use of text messages, because each involved other more important factors and it is unlikely either decision would have been different if text messages had not been used.
 
However, it is reasonable to say that in the majority of cases, using a text message will be taking an unnecessary risk, as well as being rude, inappropriate and sometimes gutless. It would be very easy for an employee to argue that it was a breach of procedural fairness, even if on its own it may not be enough for a dismissal to become unfair.
 
Arguably, dismissal via text message can also weaken an employer’s defence by indicating that the employer was unwilling to confront the employee about his/her performance and conduct. This may create the impression that the employer lacked the courage of its convictions about how justified the dismissal actually was, and took an expedient way out. FWA made comments to that effect in the Sokolovic case (see above), stating that basis for a decision conveyed by TEXT is ‘immediately open to challenge upon the inference that the decision-maker did not have, in all good conscience, sufficient confidence in the decision to act with any conviction’.

Easily misunderstood
 
Another drawback of dismissing someone in this way is that the content of text messages can be relatively easily misunderstood because of its reliance on abbreviations and slang terms. Disputes over ‘that’s what you sent’ versus ‘that’s what I meant’ are common. Face-to-face communication allows matters to be clarified, while written communications provide a clear and permanent record of what messages were sent and received.

Appropriate?
 
Would dismissal by text message ever be appropriate? Maybe in some very limited circumstances. 
 
These could include where there was a significant and immediate threat to safety, or the likelihood of a physical or highly emotional confrontation between employee and employer, where in both cases having the employee on site would be too risky. Another situation would be when face-to-face contact with the employee is impossible (eg the employee is overseas and the matter cannot wait until his/her return). Finally, misconduct may be so blatant and indisputable that any discussion about it would be pointless. But even in these situations, the text message should be quickly followed by a formal letter explaining the decision in greater detail.
 
A possible alternative in urgent circumstances such as the above would be to tell the employee that a meeting is scheduled for the next day to discuss serious issues, and that the employee can bring a support person to the meeting.
 
If the employee is off-site, you could send a detailed letter setting out the reasons why dismissal is being seriously considered, and provide the employee with an opportunity to return to work and discuss the reasons.

Summary: not a good idea

 
Although the cases decided so far are not definitive about the validity of dismissal by text message, it is not recommended because it removes a basic element of procedural fairness from the process — the right to be heard — and thus increases the risk that a claim of unfair dismissal will be upheld.
 
In summary, don’t hide behind technology, face up to the fact that sometimes you have to deliver bad news in detail and in person.

Source: Mike Toten, HR writer.
Mike Toten
Mike Toten is an HR Consultant who specialises in research and writing about HR best practices, industrial relations, equal employment opportunity and related areas. He has been a regular contributor to WorkplaceInfo for a number of years. more from Mike
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