Retail worker Sedina Sokolovic launched an unfair dismissal case after being informed by SMS on Boxing Day last year that she had been sacked. The text said Sokolovic shouldn't have swapped her shift without letting management know, and accused the complainant of not taking her work seriously.
"You can pick up your pay tomorrow and drop the key," the text said. "You don't need to call me and I don't see that we can work together."
Yesterday Fair Work Australia ruled that her sacking was harsh, unjust and unreasonable, and awarded her $9,992 in compensation. The amount is about eight weeks' remuneration at the weekly rate immediately before dismissal.
"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," Commissioner Ian Cambridge said.
Industrial relations lawyer Peter Vitale says text messages should be viewed with caution, and they're not considered appropriate where communication between the employer and an employee has some gravity in it.
"Email can be slightly different but again when you're talking about engaging in disciplinary action, it is always preferable to meet employee face-to-face where that's possible," Vitale says.
He says the decision is really about the absence of procedural fairness, because the employee didn't have the opportunity to face the employer and discuss the reasons for the termination.
"The commissioner decided that there wasn't a sufficient reason for her to be terminated, but it was also significant that the text message constituted the only process, the only attempt to engage in procedural fairness."
Vitale says while the Commissioner drew attention to instances where it might be appropriate to sack somebody via text – such as serious misconduct or a breach of workplace safety, or where the employer had genuine concern for their own safety because of violence, or drugs and alcohol usage – these concerns were not revelant in this case.
"It was a pretty gutless way for the employer to approach the situation," Vitale says.
Vitale says while he has heard of instances where employees have been sacked via text, it's something best avoided.
"All small businesses should be aware that they have basic responsibilities to afford procedural fairness to any employee," Vitale says.
Likewise, Vitale says many employers direct their employees to notify their managers directly on issues such as sick leave and shift swaps. "It's viewed by employers as potentially unreliable and excessively informal," he says.
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written by monkeymagic, May 31, 2011
This is a very sad case of very bad management. I would be sacking the person who sent the SMS because they are clearly incapable of managing people - which looks to be part of their role. Though we are only seeing part of the communication - there may well have been multiple attempts to contact via other means and the employee refused to answer (she swapped her shift and then she gets a call from work...did she not answer the call to duty?)
written by Nick_Canny, May 31, 2011
This needs to be considered in its entirety. The employee was compensated as she was sacked without proper cause. The SMS was an aggravating factor as it denied the employee an opportunity for procedural fairness (i.e. to present a defence). Had the dismissal been fair this would not have been an issue (though as monkeymagic points out still poor management). A resignation by text may also be poor form and might impact on the chances of a recommendation, but is still a valid termination of the employment relationship. If notice is withheld, there may be remedies - irrespective of the mode of resignation
However an employer must do it face to face.
Where is the procedural fairness in that?