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Termination is often a controversial topic in the workplace, with many employers often unsure about what boundaries, rules and conditions are out there. There are many ways that an employee can be terminated, whether it is face to face/in person, by email or letter, or on the phone. With technological advancement and as society adapts, there have been countless reports of employees being terminated via text message.
What does the law say?
In an unfair dismissal case, Kaye v Fahd and other (2013), a part-time retail assistant with 19 years’ experience was terminated via text: “I am no longer contracting to MCT as of today, therefore your services are not required with immediate effect. Regards Alex.” The Fair Work Commission found that there was no valid reason for dismissal and upheld the unfair dismissal claim. Commissioner Cambridge reported that “If dismissal is implemented by any means other than face-to-face communication both the legal and ethical basis for the decision to dismiss is likely to face strong and successful challenge”. The basis of this statement is that termination via text message deprives the employee of any opportunity to respond to the dismissal to raise any defence to issue that may have contributed to the termination.
What if texting is the norm between the employer and employee?
Another recent case, Kurt Wallace v AFS Security 24 7 Pty Ltd, text message was argued by the defence as a normal method of communication between the employer and employee. The employer terminated the employee via text message with no written notification of dismissal. The judge ruled that “The procedure that the employer adopted whereby it advised the applicant of his dismissal by way of text message, and which was for an undisclosed reason, was plainly unjust, unreasonable, harsh, and, unconscionably undignified. The dismissal of the applicant with such perfunctory disregard for basic human dignity reflects very poorly upon the character of the individual or individuals responsible.”
So even if texting is the norm between the employer and employee, consideration should be taken as to whether this method of contact is suitable for terminating an employee.
If there are exceptional circumstances, for example, fear of violence, notification should be provided via telephone call or video call rather than simply a text message.
If you are considering terminating an employee, we recommend you get legal advice before doing so to ensure it is carried out ethically and within the law. Our employment lawyers can help you. Get in touch with one of our team today for a free initial consultation.