Can you sack a work­er by text message?

In brief

Hutchi­son Ports’ recent dis­missal of near­ly 100 of its employ­ees by a mid­night text mes­sage has made head­lines around Aus­tralia. It has also sparked out­rage and huge protests amongst its workforce.

This arti­cle looks at some of the issues aris­ing from this com­mu­ni­ca­tion style when it comes to ter­mi­nat­ing employment. 

The facts

The text mes­sages report­ed­ly stat­ed:

Please check email address that payslips are sent to for a per­son­al let­ter regard­ing a redun­dan­cy pro­gram noti­fi­ca­tion.

You are not required for your allo­cat­ed shift. Please dis­re­gard your most recent work order.”

The email then con­firmed the work­er’s redundancy.

While the Fair Work Com­mis­sion’s involve­ment in the mat­ter so far, has been focused on the alleged ille­gal­i­ty of the result­ing pick­ets out­side Hutchison’s Syd­ney and Bris­bane con­tain­er ter­mi­nals, the facts of the case raise ques­tions about the gen­er­al law­ful­ness of dis­miss­ing an employ­ee by text message.

The law

Sec­tion 117(1) of the Fair Work Act states that: An employ­er must not ter­mi­nate an employ­ee’s employ­ment unless the employ­er has giv­en the employ­ee writ­ten notice of the day of the ter­mi­na­tion (which can­not be before the day the notice is given).”

Though the Act does not pro­vide fur­ther details of what con­sti­tutes writ­ten notice”, in Guir­guis v Ten Twelve Pty Ltd & Anor [2012] FMCA 307 the Fed­er­al Mag­is­trates Court held that a text mes­sage dis­miss­ing an employ­ee, com­plied with the writ­ten notice require­ments under the Act as a text mes­sage was a form of writing”.

Fol­low­ing that case, it would appear that it is pos­si­ble to effec­tive­ly end an employ­ment rela­tion­ship by text message.

A valid dis­missal- but is it fair?

The more impor­tant ques­tion, how­ev­er, is whether dis­miss­ing an employ­ee by text mes­sage expos­es an employ­er to the risk that the dis­missal may be held to be unfair.

The Act pro­vides in essence that a find­ing of unfair dis­missal will not be avail­able where the dis­missal was a case of gen­uine redun­dan­cy”. The def­i­n­i­tion of gen­uine redun­dan­cy” requires that:

  • the employ­er no longer requires the employ­ee’s job to be per­formed by any­one because of changes in the oper­a­tional require­ments of the employ­er’s enterprise
  • the employ­er has com­plied with any oblig­a­tion in a mod­ern award or enter­prise agree­ment to con­sult the employ­ee about the redundancy
  • it would not have been rea­son­able for the employ­ee to have been rede­ployed in the employ­er’s enter­prise or that of an asso­ci­at­ed entity”

It fol­lows that in redun­dan­cy sit­u­a­tions where an employ­er has com­plied with the above require­ments the fact that the ulti­mate deci­sion to dis­miss was com­mu­ni­cat­ed by text mes­sage is unlike­ly to be rel­e­vant to whether the dis­missal is held to be unfair.

How­ev­er, a text mes­sage inform­ing an employ­ee that they are being made redun­dant with­out first com­ply­ing with any con­sul­ta­tion require­ments in a mod­ern award or enter­prise agree­ment will clear­ly put the employ­er more at risk of a find­ing of unfair dis­missal. It may also place an employ­er at risk of being found to be in breach of the con­sul­ta­tion pro­vi­sions of the rel­e­vant award or enter­prise agree­ment. This can leave an employ­er exposed to sig­nif­i­cant fines.

It is sus­pect­ed that any legal chal­lenge to Hutchi­son Port’s actions by the Mar­itime Union of Aus­tralia may include an asser­tion as to a breach of a rel­e­vant award or enter­prise agree­ment although this remains to be seen.

Text mes­sage dis­missals in oth­er situations

Where an employ­ee is dis­missed for a rea­son (oth­er than one found to be a gen­uine redun­dan­cy”), a dis­missal may be held to be unfair under the Act if it is con­sid­ered harsh, unjust or unrea­son­able” (s 385).

The Act lists the fac­tors that must be con­sid­ered in deter­min­ing whether a dis­missal is harsh, unjust or unrea­son­able. These include:

  • whether the employ­ee was noti­fied of the rea­son for their dismissal
  • whether the employ­ee was giv­en an oppor­tu­ni­ty to respond to this reason

In Sed­i­na Sokolovic v Mod­estie Fash­ion Aus­tralia Pty Ltd [2011] FWA 3063 an employ­ee ter­mi­nat­ed by text mes­sage was found to have been unfair­ly dis­missed because, amongst oth­er things, she was not afford­ed an oppor­tu­ni­ty to respond to the var­i­ous issues that the employ­er said he was hav­ing with her con­duct at work (includ­ing swap­ping shifts with­out permission).

Fair Work Aus­tralia was extreme­ly crit­i­cal of the fact that the dis­missal was com­mu­ni­cat­ed by text mes­sage, but read­ing between the lines of the judg­ment, the pri­ma­ry rea­son for the unfair­ness of the dis­missal seems to be the lack of a face-to-face meet­ing with the employ­ee before the employ­er took the deci­sion to dis­miss (rather than the fact the dis­missal was com­mu­ni­cat­ed by text message).

In Brett Mar­tin v DecoGlaze Pty Ltd [2011] FWA 6256 on the oth­er hand, it was found that an employ­ee ter­mi­nat­ed by text mes­sage was fair­ly dis­missed, even when the text was sent with­out first hav­ing a face-to-face meet­ing. In that case, the employ­ee’s actions in fail­ing to prop­er­ly pre­pare paint to be applied to kitchen fit­tings cost the employ­er $74,000 to rec­ti­fy.

Fair Work Aus­tralia found that there was a valid rea­son for com­mu­ni­cat­ing by text (the employ­ee was on leave and just about to go over­seas) and the grav­i­ty of the employ­ee’s mis­take was so seri­ous that even if they had had a face-to-face meet­ing it would not have made any dif­fer­ence to the deci­sion to dismiss.

Lessons for employers

Although it is pos­si­ble to end an employ­ment con­tract by text mes­sage, employ­ers may expose them­selves to the risk of find­ings of unfair dis­missal and penal­ties, if they do not ade­quate­ly con­sult with employ­ees in redun­dan­cy situations.

Employ­ers also expose them­selves to the risk of unfair dis­missal claims if they do not have face-to-face meet­ings with mis­cre­ant employ­ees and allow them to defend any rel­e­vant alle­ga­tions, before tak­ing any deci­sion to dismiss.

Although legal­ly there may be lit­tle issue in com­mu­ni­cat­ing the ulti­mate deci­sion to dis­miss by text, employ­ers risk dam­age to their rep­u­ta­tion if com­mu­ni­ca­tions are not han­dled sen­si­tive­ly, which, in the case of Hutchi­son Ports may prove even more costly.