Dismissals by e-mail or text; very dangerous

The Fair Work Commission has repeatedly expressed its disapproval of a termination of employment being communicated to an employee other than orally ina  face to face meeting, followed by written notice. In Anita Cachia v Scobel Pty Ltd ATF The S & J Trust t/a Emerse Skin and Laser [2018] FWC 2648, Deputy President Sams of the Fair Work Commission said this about this issue.

“If there be one criticism of the process it is this. Mr McLennan informed the applicant of her dismissal by phone. 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 employee. As there had already been one meeting with Mrs McLennan, I can see no reason why a further meeting could not have been organised for the purpose of explaining the respondent’s decision and discussing the termination arrangements. That said, I accept the respondent has no human resource or industrial relations expertise or experience and had relied on the Commission’s Website information and the terms of the Code to effect the applicant’s dismissal. I note that there is no stated requirement in the Code (or the Code’s checklist) that the employer must convey the dismissal decision, in person. However, I consider 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.”

He went on to express his approval of the following comments by a colleague, Commisioner Cambridge, in another case, namely Knutson v Chesson Pty Ltd t/a Pay Per Click [2018] FWC 2080:

“The employer provided notification of dismissal by email communication sent at 8.53 pm on 6 November 2017. Notification of dismissal should not be made by email communication. Unless there is some genuine apprehension of physical violence or geographical impediment, the message of dismissal should be conveyed face to face. 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.”

It should be accepted, then, that there will be situations in which a failure to meet these requirements, whilst not always fatal, may render a fair dismissal into an unfair one.