Australian Rulings Stress the Need to Avoid Firing by Text

By Dinah Wisenberg Brin December 9, 2019
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Australian Rulings Stress the Need to Avoid Firing by Text

​Businesses that fire workers via text message or e-mail could find themselves running afoul of Australian labor authorities, who recently cautioned employers through two legal decisions that job termination notices should be delivered in person, with rare exception.

In rulings that reinforced earlier decisions, the Fair Work Commission (FWC), Australia's national workplace tribunal, criticized text-message firings as callous, unjust and unreasonable.

In Wallace v. AFS Security, a casual worker who had been employed as a security guard for two years was fired via text message, "effective immediately," without warning or stated reason.

The FWC ruled in June that the termination violated Australia's Small Business Fair Dismissal Code. Not only did the employer provide no defensible reason for the dismissal, it erred in firing the employee by text message, the commission found.

"Notification of dismissal should not be made by text message or other electronic communication. Unless there is some genuine apprehension of physical violence or geographical impediment, the message of dismissal should be conveyed face to face. To do otherwise is unnecessarily callous," stated the ruling from Commissioner Ian Cambridge, who awarded the dismissed security guard AU$12,465 (approximately US$13,792).

"The employer made the decision to dismiss the applicant without any discussion or other communication with him, and instead it just sent him a text message to let him know the bad news," the FWC noted. Notifying the employee via text message that he was dismissed for an undisclosed reason, the tribunal ruled, "was plainly unjust, unreasonable, harsh and unconscionably undignified."

The dismissal showed "perfunctory disregard for basic human dignity," the FWC said.

Another case, Thai v. Email Ventilation Pty Ltd., also addressed in June, involved a 62-year-old sheet metal worker who received a text message notifying him that he was being fired after 12 years with the company.

The FWC found the dismissal "harsh, unjust and unreasonable" based partly on the notification method.

Firing by E-Mail or Text Rarely Justified

"I consider it would only be in rare circumstances that a decision to dismiss an employee should not be conveyed in person," wrote FWC Deputy President Peter Sams. He added that "it may be necessary where the employer believes a dismissed employee might be a threat" to employee safety, or because the employee expressly did not want a face-to-face meeting to learn the outcome of a disciplinary process.

There is an expectation that termination "will be done in a fairer, more personal and more formal way" that allows the employee a proper opportunity to respond to the reasons for dismissal, said Ben Dudley, an attorney with Seyfarth in Sydney.

Employers must take a measured and reasonable approach to termination. In the heat of the moment, an employer might feel an action is justified, "but [they] need to remember that things can appear very different to a third party poring over what happened in the cold light of day many months later. You need to step back and reflect on how what you are doing will look later," Dudley said.

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Takeaways for Employers

Casual work was long viewed as sporadic, with no expectation of ongoing employment, noted Naomi Seddon, a Los Angeles-based Littler attorney who focuses on global employment law in Australia. Now, she said, there's an emphasis on the rights of long-term casuals who have worked regularly for a company.

Employers need to be wary of classifying a worker as a casual employee for long periods, "and it is advisable to apply the same rules when it comes to the termination of long-term casual employees—that is, to ensure that a procedurally fair process is applied," Seddon said.

Both cases, she said, emphasized the need to fire workers face to face in most instances, even for small businesses and in firms where employers and employees usually communicate electronically.

This aspect is problematic "because in modern-day remote workplaces, this is not always possible, especially where an employee may be the sole employee in a particular state or country," she said. Nonetheless, she said that employers should "be mindful of the commission's view on the requirements for a fair termination and, where possible, should ensure that there is someone on the ground to convey the termination decision to the employee."

In most cases, a procedurally fair termination process in Australia must involve providing the employee with written notice of a meeting to discuss his or her employment, advising the employee of the right to have a support person present in the meeting, giving the employee an opportunity to respond to the proposed reasons for termination, and, if termination does occur, providing written notice, according to Seddon.

She recommended that employers seek advice before firing employees if they are unsure of the legal requirements. 

To fairly terminate workers who are protected by Australian unfair-dismissal laws, employers need a valid reason based on performance, conduct or operational issues and must follow a reasonable predismissal process, said Tim Capelin, an attorney with Piper Alderman in Sydney. He added that it is better to convey the final decision in person and confirm it in writing, "unless you have a good reason for not doing so."

Dinah Wisenberg Brin is a freelance writer and journalist based in Philadelphia.

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