Unfair Dismissal and Technology: Terminated via Text, Email or Facebook Messenger
Calling a meeting to inform an employee that their employment is being terminated is rarely a comfortable experience, so it is unsurprising that some employers look to skip the meeting altogether, and instead opt for one of the many digital communicative tools that have worked their way into modern life. This is a risky approach, with unfair dismissal being cited in a number of cases involving technology, as a number of recent examples have shown.
In the recent case of Cachia v Scobel Pty Ltd, the employer (a small business with fewer than 15 employees), applied the Small Business Fair Dismissal Code, in what the commission found was a robust and thorough manner, giving the employee procedural fairness before termination. Deputy President Sams had one criticism of the process, which was that the termination was communicated by a late night email.
Deputy President Sams found that the termination was fully justified, as the employee did legitimately pose a threat to other employees. With this said, he was not impressed by the email dismissal, saying:
"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. As there had already been one meeting with [the employee] I can see no reason why a further meeting could not have been organised for the purpose of explaining [the company's] decision and discussing the termination arrangements."
While the code did not include any requirement that the dismissal decision must be made in person, Deputy President Sams commented that:
"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. To do otherwise is unnecessarily callous.
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."
I suggest that employers bear these words in mind, especially under circumstances where utilising a potentially less confronting method of communication is tempting.
It is also relevant to note that the use of these remote methods of communication can sometimes lead to conversations getting quite out of hand. In the recent case of Morris v Alphaeus Hair Salon, where an employee was terminated during a late night Facebook Messenger conversation between a hairdresser and the owner of the salon where she worked, which started as a normal conversation but quickly spiralled out of control.
In this case, the owner and the employee had frequently communicated via Facebook Messenger, although in this particular instance the conversation went as follows:
a) The owner messaged to enquire whether the hairdresser had a morning appointment. When the employee did not reply immediately (she said her phone battery had died while she was fixing Christmas lights), the employer sent further messages saying "I will not take silence anymore", and that she had to decide whether she was with or against him.
The employer continued by threatening to 'sever' her as he had done to others;
b) The owner said: 'Just fixed your detrimental situation with the client you destroyed her hair!' and 'You are not in control I am girl.'
c) The owner ordered the hairdresser to cut ties with former colleagues and said 'I've been shown a vision of you leaving me!'
d) The hairdresser claimed that she was stressed out, and that she would not come to work the following day;
e) The owner said 'Good luck in your new job if you can find one, you won't given my presence. I will cut you from my fold'.
f) The hairdresser then messaged the owner to say that she'd quit and did not need his luck.
g) The owner then issued a further diatribe in messages, including threatening to destroy the hairdresser and break her bones.
It was not apparent to the commissioner whether either party was lacking in sobriety at the time.
As the hairdresser's message stating that she had quit had followed on from the salon owner's statement relating to her getting another job, the commissioner decided that it was a case of unfair dismissal, as the termination had been instigated by the employer, and that the salon owner had failed to provide the hairdresser with a reason. Similarly, by using Facebook Messenger for the conversation, it was decided that the owner had failed to provide a proper opportunity for the employee to respond.
The owner's 'reasons' for the employee's termination seemed to consist of nothing more than a conspiracy theory, which were grounds for unfair dismissal, and the employee was subsequently awarded compensation amounting to four weeks' salary, to cover the period up until she found new employment.
These two cases help to illustrate the danger of using remote methods of communication for termination and pre-termination conversations (as opposed to direct personal meetings). Communication of a final decision via remote communication may be in order if the previous process has been conducted in person and with a proper amount of detail, but not if a there are matters of substance to be discussed, and definitely not if the remote conversation turns to anger, and degenerates to termination without proper process.
As an experienced employment lawyer, I suggest that the old wisdom of not terminating in anger is still good advice, even when using new technology!
If your organisation is currently facing issues relating to employee performance, conduct management, employee terminations and/or risk management when it comes to unfair dismissal, please don't hesitate to get in contact with Coleman Greig's Employment Law Team: