The Case

BMI Group Pty Ltd T/A BCC Crushing (BMI) employed Mr Engelbrecht as an operator.

In December 2016, Mr Engelbrecht agreed with Mr Faux, a BMI supervisor, to return to work after the Christmas break on 3 January 2017. On 3 January 2017, Mr Engelbrecht slept in, attended a doctor’s appointment and did not attend work. Mr Faux tried to call Mr Engelbrecht but could not reach him.

Mr Faux then sent a text message to Mr Engelbrecht’s partner, Ms Byrd, enquiring when Mr Engelbrecht would be back at work. Ms Byrd replied by text message, “Hi Dan, apologies I was suppose [sic] to message you this morning. He had an appointment booked for his treatment/medication. He did want to go today until I reminded him of his appointment as it is necessary for him to keep up his medication/treatment. Thanks Julie”.

In a later telephone call between Mr Faux and Ms Byrd, Ms Byrd alleged that Mr Faux indicated Mr Engelbrecht should return to work on 9 January 2017.

On 4 January 2017, Mr Faux sent a text message to Ms Byrd stating, “Is he running late or not in?”. Ms Byrd responded “I let jniq [sic] yesterday after you rung me and explained it wasn’t a drama are [sic] all if he wasn’t back until the 9th. He’ll see you on the 9th January”. Mr Faux then replied, “Can you ask him to ring me please”.

Mr Faux and Mr Engelbrecht spoke on the phone later that day with Mr Faux indicating he expected Mr Engelbrecht to be at work. Mr Engelbrecht attended work on 5 January 2017.

On 13 January 2017, Mr Engelbrecht was issued with a second written warning for his non-attendance on 3 and 4 January 2017. Mr Engelbrecht disputed there was a first written warning and when he asked to see it, he was told he would have to make his request in writing. In fact, a first written warning had not been issued but had been drafted and placed on Mr Engelbrecht’s file. As such, when Mr Faux went to prepare his warning he did not realise the one on file had not been issued so called it a second written warning.

On 16 January 2017, Mr Engelbrecht approached his manager, Mr Ali, and informed him that when Mr Ali was not around, Mr Faux was abusive towards him. Mr Engelbrecht said to Mr Ali, “I can’t work with him anymore”. Mr Ali said to Mr Engelbrecht, “I don’t want to lose you”. Mr Engelbrecht asked Mr Ali whether he could be transferred to another site, as he was aware that employees in the past had been transferred. Mr Ali stated he would think about a transfer to another site, and instructed Mr Engelbrecht to go home.

It was Mr Engelbrecht’s evidence that Mr Ali said he would call Mr Engelbrecht that afternoon to discuss what had transpired. Mr Ali did not contact Mr Engelbrecht, and he received the following text message from Mr Faux: “Stuart I don’t understand why you didn’t see me this morning. I also don’t understand why you would go through the trouble of a stat Dec from Julie. You were given a written warning for failing to make contact prior to shift and it’s as simple as that. I will require a written resignation letter should you be wished to be paid your entitlements as you have not served out a notice period. You are required to return Bmi property such as keys etc. Could you please call to discuss.”

Mr Engelbrecht did not call to discuss the text with Mr Faux. Mr Engelbrecht simply stopped attending work. It was Mr Engelbrecht’s evidence that he considered he had been dismissed from his employment.

Mr Engelbrecht commenced unfair dismissal proceedings alleging he had been constructively dismissed.

BMI raised a jurisdictional objection to Mr Engelbrecht’s unfair dismissal claim, indicating Mr Engelbrecht had not been dismissed – as Mr Faux thought Mr Engelbrecht had verbally resigned during his conversation with Mr Ali – and hence Mr Engelbrecht did not have access to the unfair dismissal jurisdiction.

The Verdict

On analysing Mr Faux’s text message and the surrounding circumstances, the Fair Work Commission (FWC) found that the text message did not terminate Mr Engelbrecht’s employment and invited him to call his supervisor, which he did not do. As such, the FWC found that Mr Engelbrecht was not dismissed by BMI and had resigned his employment.

The Lessons

It is important not to use text messaging as the medium to discuss serious issues with employees such as termination of employment, resignation, performance management, disciplinary matters or offers of employment. Text messages, being an informal and short means of communication, are open to misinterpretation and misunderstanding. They are also not the best method of record keeping, should that communication need to be used as evidence in the future. They can be difficult to print, are apt to manual or automatic deletion, and it can be difficult to locate the relevant message.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.