“Unjust, unreasonable, harsh and unconscionably undignified”: Worker wins $12,500 after being dismissed via text message
Dominic Powell / Thursday, July 4, 2019
A worker casually employed as a security guard has won nearly $12,500 in compensation after being summarily dismissed via text message, prompting a warning for business owners to know the rules for dismissing casual employees.
The security guard, who was working at a small New South Wales-based firm, had been casually employed at the business for over two years, working on a monthly/bi-monthly roster with a team of two other security guards.
Earlier this year, the employee messaged the payroll manager at the business, who is also the director’s wife, regarding concerns about the rostering arrangements, and another concern about not being paid for a shift undertaken the week prior.
In response, the company’s payroll manager said: “I had to do the pays yesterday as I’m in hospital today for a day surgery procedure so didn’t get to see your timesheet. I will fix it up next week”.
The worker then responded, noting they were not aware the manager was in hospital and saying: “Hope all is well then”.
Just under a week later, the employee received another message from the payroll manager, saying: “Effective immediately we no longer require your services as a casual patrol guard”.
In response, the worker sent another message asking the payroll manager to “please explain”, attempted to call the manager, and then drove to the company’s office to seek an explanation.
Upon confronting the payroll manager, the employee was told that, because he was a casual employee, no explanation for dismissal was required.
In considering the case, Commissioner Cambridge noted that typically, casual employees are not eligible for unfair dismissal claims. However, there are a number of conditions under which casual employees may claim they were unfairly dismissed.
These include meeting a minimum period of employment (one year for small-business employers), having a reasonable expectation of ongoing employment, and being employed on a regular and systemic basis.
The employee in this scenario satisfied all three conditions. They had been employed for more than two years on a rostered basis, and at the time of dismissal had another rostered shift scheduled for the week forthcoming.
The FWC also determined the employee had been dismissed, rather than it being a case of genuine redundancy, and that the dismissal was not protected by the Small Business Fair Dismissal Code, as the employer did not have reasonable grounds to suspect the employee of serious misconduct.
No warning or explanation was provided to the employee, nor were they given the opportunity to respond.
Dismissal via text “callous and undignified”
In the judgment, Commissioner Cambridge criticised the business owner for their poor handling of the dismissal, saying the decision was “capricious and ill-founded”.
“In this instance, the summary dismissal of the applicant was not connected with any discernible reason other than the employer’s mistaken belief that it could dismiss the applicant as a casual employee with or without any articulated reason,” he said.
Commissioner Cambridge could discern no reason as for the employee’s dismissal, saying it remains “something of a mystery” and likely was no more than the employer’s desire to reduce the number of security guards they employed.
“The employer offered no other explanation for the reason for the dismissal of the applicant other than; ‘[their] services as a casual employee were no longer required’,” he said.
“The circumstances in this case have established that there was no sound, defensible or well-founded reason for the dismissal of the applicant.”
The judge also criticised the employer’s use of text message to dismiss the employee, saying dismissal should be conveyed face-to-face unless there is a “genuine apprehension of physical violence or geographical impediment”.
“To do otherwise is unnecessarily callous,” he said.
“The procedure that the employer adopted whereby it advised the applicant of his dismissal by way of text message, and which was for 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.”
The business was ordered to pay a total of $12,465 in compensation.
Dominic is the former features and profiles editor at SmartCompany.
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