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Employment and Migration Blog

U R fired!

Posted by Anna Ford on 21 Jun 2011

There’ve been a few instances of termination by text surfacing in recent FWA decisions. On the face of it, sounds like pretty poor HR, but there can be exceptions.

I had an unfair dismissal case recently where the termination was by text, and it seemed OK to me – but this was in the context of the employee having been refused leave, saying he’d take the time off anyway and get a doctor’s certificate, then failing to show for several days, refusing to come to the door when his boss called by, and refusing to take his boss’s calls. Sending a text in those circumstances at least had the virtue of being in writing (as required by the FW Act), and was therefore better than leaving a voicemail. However, it would have been better still if a snail mail had followed with all the usual details. Not hard to do. We never had to put it to the test as the employee lost interest and cancelled the conciliation.

However, the more typical situation usually makes the employer look like a rogue boss. In one recent case, the text message was sent on Boxing Day (a Sunday to boot), to an employee who had been late and had changed shifts, without reference to her employer, in the week before Christmas. During the swapped shift, $5,000 worth of goods were stolen. The “compliments of the season” text said:

… I have let you go for two reasons. Firstly you shouldn't swap the shift without letting me know. Secondly you even swap the shift you start one hour late knowing it will be busy and leaving … alone. That shows me you not taking me serious or the work. Which hurts me enough and you can pick up your pay tomorrow and drop the key. You don't need to call me and I don't see that we can work together. … Thank you for everything.

Serious as the circumstances were, it is hard to see why it couldn’t wait till manager and employee were next face to face: the text could have said “I’m pretty annoyed. See me on Tuesday and bring a support person”. The SMS announced a decision with no chance for the employee to respond or explain – even if there is serious misconduct, you still need to tell the worker what’s alleged and get their response before proceeding – the process has to be right. Doing it by text (not having the courage to deal personally with the employee, as FWA saw it) is just bad PR. It cost this employer nearly $10K, plus the time and emotional energy involved in contesting the case.

Using text (or tweets, or Facebook posts) this way makes it very easy to act instantaneously, without reflection. This breaks one of Booth’s 101 Rules for Avoiding an Unfair Dismissal Claim, actually up there in the Top 10 I think: Never Fire in Anger. It is almost always better to let the anger subside and conduct the termination meeting when you are relatively cool, calm and collected.

Of course, you can always ring us at Coleman Greig, and vent your feelings to us, and then we can discuss how to manage the risks of doing what has to be done.

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