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Employee’s sacking by text “plainly unjust” FWC rules

By Portner Press on July 10th, 2019
  1. Termination of Employment
  2. Unfair Dismissal

The Fair Work Commission (FWC) has taken exception to a small business’s dismissal of a casual employee over text, which Commissioner Ian Cambridge described as “unconscionably undignified”.

AFS Security 24/7 Pty Ltd dismissed its casual employee of more than two years with the following text:

“Effective immediately we no longer require your services as a casual patrol guard with AFS Security.”

When the employee texted back asking “Please explain”, he received no response. He then telephoned. The employer did not answer.

The employee then drove to the company’s office and approached the director’s wife and payroll officer, who had messaged him, repeatedly asking for an explanation for his dismissal.

She told him that as he was a casual employee, she was not required to give him an explanation. Further, the employer did not provide him with any documentation confirming the termination of his employment.

The employee submitted to the FWC that he had been unfairly dismissed as he was employed by AFS Security regularly and systematically for more than 12 months.

He also had a problem with being dismissed over text. As well as being disrespectful, he said the text message didn’t give him an opportunity to respond if there was anything to be discussed before dismissal. He also said that he had never been given any warnings or anything like a warning prior to the dismissal.

In its defence, AFS Security said it had relied on guidance from the “Fair Work website” as it had no experience in HR. The director said the website stated that a casual employee does not have to have a firm commitment in advance from the employer about how long they will be employed for, or for the days or hours they work.

The director also submitted that the employee’s employment was not regular or systematic, and he did not have any reasonable expectation of continuing employment on a regular and systematic basis.

Moreover, he argued that text messages were a “generational thing” and were the normal method of communication for the company.

The only reason the director gave for the employee’s dismissal was in the application form he submitted before the hearing:

“His services as a casual employee were no longer required.”

However, Commissioner Cambridge found that the casual employee’s employment was regular and systematic and as he had completed a minimum employment period of 12 months, he was entitled to unfair dismissal protection.

He pointed out that AFS Security did not comply with the Small Business Fair Dismissal Code where it states, unless an employee is summarily dismissed, that it must do the following:

“[T]he small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.”

Commissioner Cambridge said the employer “simply believed that because [the employee] was described and paid as a casual it could dispense with his services whenever it felt like it, and with or without any reason”.

“The true motivation for the dismissal of the applicant must remain something of a mystery as the employer offered no other explanation for the reason for the dismissal of [the employee] other than; ‘His services as a casual employee were no longer required’,” he said.

Employer lacked ‘basic human dignity’

“Unless there is some genuine apprehension of physical violence or geographical impediment, the message of dismissal should be conveyed face to face,” Commissioner Cambridge said.

“To do otherwise is unnecessarily callous.

“Even in circumstances where text message or other 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.

“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 employee] with such perfunctory disregard for basic human dignity reflects very poorly upon the character of the individual or individuals responsible,” he said.

Commissioner Cambridge ordered AFS Security to pay the former employee $12,465 in compensation.

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