Casu­al employ­ee lodges unfair dis­missal claim after being sacked via a text message

In Brief

Fair Work Aus­tralia (FWA) has sent a clear warn­ing to employ­ers think­ing of dis­miss­ing their employ­ees by text mes­sage, award­ing a casu­al employ­ee almost $10,000 com­pen­sa­tion after she was sum­mar­i­ly dis­missed via a text message.

Sed­i­na Sokolovic v Mod­estie Fash­ion Aus­tralia Pty Ltd [2011] FWA 3063

Sed­i­na Sokolovic was employed by Mod­estie Fash­ion Aus­tralia Pty Ltd as a casu­al retail salesperson/​shop assistant.

On 23 Decem­ber 2008, Sokolovic felt tired and unwell after work­ing a 15-hour shift until mid­night and asked a junior col­league to swap shifts with her the fol­low­ing day. This shift swap meant that the col­league would start work at 9 am on Christ­mas eve and Sokolovic could start at 11 am.

The col­league agreed to the shift swap and Sokolovic arrived approx­i­mate­ly half an hour to an hour late to dis­cov­er that her col­league had not noticed the theft of around 25 items of cloth­ing val­ued at over five thou­sand dollars.

On Box­ing Day, the employ­er sent Sokolovic a text mes­sage which stat­ed: I have let you go for two rea­sons. First­ly you shouldn’t swap the shift with­out let­ting me know. Sec­ond­ly… you start one hour late know­ing it will be busy and leav­ing [the junior col­league] alone.”

Sokolovic lodged an unfair dis­missal claim with FWA.

Is a casu­al employ­ee eli­gi­ble to lodge an unfair dis­missal claim?

The first issue which FWA con­sid­ered was whether Sokolovic was enti­tled to lodge an unfair dis­missal claim.

The tri­bunal referred to the rel­e­vant pro­vi­sions of the Fair Work Act which enti­tle a casu­al employ­ee to lodge an unfair dis­missal claim where they can estab­lish that they were employed on a reg­u­lar and sys­tem­at­ic basis and had a rea­son­able expec­ta­tion of con­tin­u­ing employment.

This require­ment will gen­er­al­ly be sat­is­fied where the casu­al employ­ee works to a clear pat­tern or ros­ter, or is reg­u­lar­ly offered work which is gen­er­al­ly accept­ed. The employ­er did not dis­pute this ele­ment, so it was found that Sokolovic was enti­tled to lodge an unfair dis­missal claim.

Can the Small Busi­ness Fair Dis­missal Code assist employers?

The employ­er chal­lenged the unfair dis­missal claim on the basis that it com­plied with the Small Busi­ness Fair Dis­missal Code, which pro­vides that it is fair to dis­miss an employ­ee with­out notice when the employ­er has rea­son­able grounds to believe that the employ­ee’s con­duct is suf­fi­cient­ly seri­ous to jus­ti­fy imme­di­ate dismissal.

FWA con­sid­ered the employ­er’s answer to a ques­tion on the Small Busi­ness Fair Dis­missal Code Check­list, which con­tained the employ­er’s rea­son for sum­mar­i­ly dis­miss­ing Sokolovic. Inter­est­ing­ly, this did not men­tion the shift swap, but rather Sokolovic’s fail­ure to ful­fil a task giv­en to her, arriv­ing late, poor behav­iour towards staff and cus­tomers and not tak­ing her duties seri­ous­ly. The tri­bunal found that none of these mat­ters rep­re­sent­ed seri­ous mis­con­duct which would jus­ti­fy imme­di­ate dis­missal and con­clud­ed that the employ­er had bla­tant­ly breached the Small Busi­ness Fair Dis­missal Code.

How does FWA deter­mine if a dis­missal was unfair?

The tri­bunal then pro­ceed­ed to the crit­i­cal issue of whether the dis­missal was harsh, unjust or unrea­son­able. As dis­cussed in our pre­vi­ous arti­cle, Valid rea­son for dis­missal the key to defend­ing unfair dis­missal claims, the cri­te­ria which FWA will con­sid­er in deter­min­ing whether a dis­missal is harsh, unjust or unrea­son­able include, among oth­ers, whether there was a valid rea­son for the dis­missal, whether the employ­ee was noti­fied of the dis­missal and whether the employ­ee had an oppor­tu­ni­ty to respond.

No valid rea­son for dismissal

In con­sid­er­ing the first fac­tor, FWA ini­tial­ly found that although shift swap­ping with­out the employ­er’s knowl­edge may con­sti­tute a valid rea­son for dis­missal where the prac­tice is pro­hib­it­ed in the work­place, there was evi­dence that shift swaps occurred fre­quent­ly with­out the employ­er’s advance knowledge.

Fur­ther, the late arrival also did not amount to a valid rea­son for dis­missal, because under the mod­ern award which applied to Sokolovic, as she had worked until mid­night on 23 Decem­ber, she could not be required to work before mid­day on the fol­low­ing day. In find­ing that there was no valid rea­son for dis­missal, FWA con­clud­ed that the employ­er had made an ill-con­sid­ered and hasty deci­sion which in real­i­ty, was a reac­tion moti­vat­ed by a con­sum­ing desire to find blame for the larceny”.

No noti­fi­ca­tion and no oppor­tu­ni­ty to respond

The tri­bunal found it appalling for the employ­er to dis­miss Sokolovic via a text mes­sage because it clear­ly deprived her of the oppor­tu­ni­ty to respond and it indi­cat­ed the employ­er’s lack of courage in meet­ing face-to-face with Sokolovic. Accord­ing to FWA, dis­miss­ing an employ­ee with­out face-to-face con­tact imme­di­ate­ly opens the deci­sion to chal­lenge because it indi­cates that the employ­er did not have suf­fi­cient con­fi­dence in the deci­sion to dis­miss the employ­ee with any conviction.

Because of these fac­tors, FWA approved Sokolovic’s claim.

Excep­tions where an employ­ee could be sacked by text message

The tri­bunal not­ed that there would be instances in which an employ­er could dis­miss an employ­ee via a text mes­sage. These would be unusu­al cir­cum­stances, either where the employ­ee com­mit­ted gross and wil­ful mis­con­duct that was admit­ted or unde­ni­ably exis­tent and no pos­si­ble expla­na­tion or mit­i­ga­tion could alter the deci­sion, or where face-to-face con­tact may involve some gen­uine prospect of aggres­sion or vio­lence. Sokolovic’s sit­u­a­tion did not ful­fil these criteria.

Com­pen­sa­tion award­ed to the employee

Sokolovic did not seek rein­state­ment, so FWA award­ed her com­pen­sa­tion instead. The amount of com­pen­sa­tion ordered was eight weeks’ remu­ner­a­tion, amount­ing to $9,992.00. This was based on a num­ber factors:

  • Sokolovic had worked for the employ­er for two years
  • It was like­ly that she would have worked for the employ­er for at least anoth­er two years if she had not been dismissed
  • She had attempt­ed to mit­i­gate her loss­es by find­ing oth­er employ­ment five weeks after the dismissal
  • She was paid at a low­er rate at her new job
Advice to employ­ers – fol­low the dis­missal pro­ce­dure in the Fair Work Act

This deci­sion clear­ly high­lights the impor­tance of respect­ing the dis­missal pro­ce­dure set out in the Fair Work Act. Employ­ers need to noti­fy the employ­ee of the rea­son for the dis­missal and pro­vide him or her with an oppor­tu­ni­ty to respond before any deci­sion to ter­mi­nate is formed.

FWA’s deci­sion also sends a warn­ing to employ­ers that they can­not assume there will be no con­se­quences from dis­miss­ing casu­al employ­ees who work on a reg­u­lar basis at whim, because even a casu­al work­er may be enti­tled to sub­stan­tial com­pen­sa­tion if their dis­missal is found to be unfair by FWA.

The full text of the judg­ment in Sed­i­na Sokolovic v Mod­estie Fash­ion Aus­tralia Pty Ltd can be down­loaded from the web­site of Fair Work Australia.

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