Employers may give valid directions by text

This is an extract from an unfair dismissal case to the effect that it is legitimate for an employer to provide valid directions or instructions to an employee by text message.

“Conclusion

[72] The evidence which the Commission has accepted is that the applicant either did not see or did not remember the text message from Ms Nash which the Commission accepts was sent to the applicant on 25 January 2022, directing her to wear a face mask when undertaking property inspections.

[73] In this case the parties used text messages as their normal method of communication. In 2022 this is a very common method of communication particularly with a casual employee.

[74] The evidence is that the applicant did not have a work email address.

[75] I do not view communication between an employee and an employer by text message as qualitatively different from communicating by email or indeed posted letter.

[76] Where the employer and the employee use text messages as their method of communication, the onus is on the employee to read and act on text messages received from their employer, just as it is if the employer had sent them an email or a letter.

[77] It is no excuse for an employee to simply say the reason they failed to comply with an employer’s direction sent to them in an email or letter was that they had not seen it or forgot it. The same applies when that direction is sent to them in a text message from their employer.

[78] The evidence is that at the meeting on 18 March 2022 the applicant explained that she was not aware that she had to wear a face mask at inspections and that she had obviously missed the text message from Ms Nash back in January 2022.

[79] In this case I have accepted that the applicant either did not read the text message sent to her by Ms Nash on 25 January 2022 or alternatively she had did read it but had forgotten about it. Neither explanation however is an acceptable reason for her not to have complied with the direction to wear a face mask when undertaking property inspections. The onus remains on the applicant to read and follow directions she received from her employer.

[80] The applicant’s explanation means however that, contrary to the submission made on behalf of the respondent, the evidence does not support a finding that the applicant not wearing a face mask at property inspections, was wilful or deliberate conduct. The applicant was not deliberately and knowingly refusing to carry out her employers lawful and reasonable direction.

[81] Consequently, the Commission’s decision is that the applicant has not committed serious misconduct justifying summary dismissal.

[82] The Commission’s decision is that only to that extent is the dismissal harsh.

[83] For that reason only I find the dismissal was unfair.

[84] Had the respondent decided to dismiss the applicant and give her notice of her termination or alternatively to pay her in lieu of that period of notice the dismissal would not have been harsh.”

Te Wano v Just Property Management Pty Ltd (2022) FWC 2493 delivered 19 September 2022 per Williams C