Why method of dismissal needs to be reviewed by the Commission

According to a recent case of Ms Anita Cachia v Scobel Pty Ltd (2018) FWC 2648, the Fair Work Commission confirmed that employees should only be dismissed by phone, text or email in “rare circumstances”.

In all other instances, the decision to dismiss an employee should be communicated in person. This decision is hugely surprising given that we are in 2018; an age encompassed by an abundance of technological devices providing us with various means of communication.

Despite this, termination by means other than in person is still frowned upon in the eyes of the Commission. The Commission’s view stands despite agreeing with the employer that the employee’s conduct had amounted to serious misconduct justifying her dismissal and that the employer had gone “further than the [Small Business] Code” requires for a dismissal of this kind.

On this basis, the Commission had actually thrown out the employee’s unfair dismissal claim.

So what amounts to a “rare circumstance”?

The Commission did not provide a definitive explanation of what amounts to a “rare circumstance”, but did say that dismissal does not need to be communicated in person in instances “when an employer believes a dismissed employee might be a threat to the safety of his/her employees or when the employee expressly did not want a face-to-face meeting to hear the outcome of any disciplinary process”.

Referring to an earlier case of Knutson v Chesson Pty Ltd t/a Pay Per Click (2018) FWC 2080 at [47], the Commission also agreed that the following instances would be acceptable
for dismissal to be communicated other than in person – “genuine apprehension of physical violence or geographical impediment”.

As can be seen, the above examples are limited in nature, which means that dismissal of an employee in 90% of circumstances will still need to be in person. This is even when the
dismissed employee is a “bully” and facing serious allegations of:

• aggressively pushing another employee “out of the door” and slamming a sliding door
  in her colleague’s face;
• “barking” orders at another employee and ordering her to undertake unnecessary
  tasks such as repeatedly cleaning the floor, an order which was not within the
  dismissed employee’s authority;
• treating certain employees “like a dog” as were the facts in this case.

How does this decision affect employers?

The Commission’s view appears outdated given:

1. there is nothing stated in the Small Business Fair Dismissal Code (Code) requiring a dismissal to be communicated in person – the intentions behind the drafters of the Code may be to allow small business owners some flexibility in terms of how they manage the termination arrangements with their employees;
2. email, phone and text are the normal communication tools within businesses;
3. in some circumstances, employers (particularly small businesses), may be happy to accept an employee’s resignation by text message or email. Perhaps it’s time that the same courtesy can be extended to employers (particularly small businesses)?
4. the business disruption a face-to-face dismissal is likely to cause to a small business employer.

In addition, unlike larger businesses, small businesses are not likely to have a Human Resource Team (otherwise known as People & Culture) to assist with and handle employee conflict.

Small business employers are therefore left to deal with these issues on their own, which in a small work environment can consequently have a much larger impact, particularly in terms of staff morale.

For some employers, they may find it hard to deal with issues face-to-face and may prefer to communicate in writing. If this is the case and communication in person is the only option available to them, these employers may choose to leave the problem unchallenged.

As a result, the business can face detrimental consequences that may include poor staff retention and lost revenue.

The Commission’s recent decision places small business owners most at risk. In our view, more flexibility ought to be given regarding the method of dismissal for certain employers in certain circumstances.

Although the outcome of this case is still a win, it gives no comfort to small business owners at all and further clarity is most certainly required, which we may see being developed in cases to come.