{"id":1087,"date":"2019-07-08T22:27:55","date_gmt":"2019-07-08T22:27:55","guid":{"rendered":"http:\/\/workplaceculturematters.com.au\/?p=1087"},"modified":"2019-07-16T01:28:11","modified_gmt":"2019-07-16T01:28:11","slug":"to-text-or-not-to-text-that-is-the-question","status":"publish","type":"post","link":"https:\/\/workn.net.au\/?p=1087","title":{"rendered":"To text or not to text? That is the question."},"content":{"rendered":"\n

Technology has fundamentally altered the way in which we interact. Five billion people use text messages globally every day.  Socially, it is one of our primary ways of interacting. Staggeringly, if you are dating someone born after 1984, there is a 53% chance<\/a> that if that person ends your relationship, it will come to an end via some electronic device, rather than a face to face meeting.  Welcome to the modern world.    <\/p>\n\n\n\n

For many business people, SMS is one of the\nprimary ways that they interact with their employees when they are not at work.\n So if it is becoming normal for romantic\nrelationships to end via SMS, is it appropriate for an employment relationship\nto end this way?  Last week, two senior\nmembers of the Fair Work Commission have independently answered this question with\nan emphatic \u2018No\u2019. <\/p>\n\n\n\n

A year ago, a colleague of mine blogged<\/a> about the issue of face-to-face dismissals, following a dismissal vial email being challenged at the Fair Work Commission. The effect of that blog was to advise our readers of the Fair Work Commission\u2019s view that communicating an employee\u2019s dismissal other than via a face-to-face meeting were only to be used in \u2018rare circumstances\u2019. In these two more recent cases last week, the Fair Work Commission has shown us that nothing has changed in the past year. \u00a0<\/p>\n\n\n\n

In the first case, Kurt\nWallace v AFS Security 24\/7 Pty Ltd <\/em>[2019] FWC 4292<\/a>, Mr Wallace, a casual\nsecurity guard, was dismissed by text message. AFS Security 24\/7 Pty Ltd\nsubmitted that as a casual employee they could dismiss Mr Wallace at any time\nand for any reason. In defending their use of a text message the employer\nsubmitted that text messages were the \u2018normal method of communication\u2019 for the\ncompany and that the preference for text messaging was a \u2018generational thing\u2019.<\/p>\n\n\n\n

Commissioner Cambridge stated that an\nemployee should be dismissed face-to-face. The use of text messages or other\nforms of electronic communication should only be used if there is a \u2018genuine\napprehension of physical violence or geographical impediment\u2019. <\/p>\n\n\n\n

The small size of the company and common\nuse of text messages in communicating with its employees did not provide an\nexcuse for the company not to comply with its obligation to communicate the\ndismissal in person. <\/p>\n\n\n\n

The second case, Van-Son\nThai v Email Ventilation Pty Ltd <\/em>[2019] FWC 4116<\/a>, involved Mr Van-Son\nThai, a first class sheet metal worker, who was informed of his dismissal via\ntext message. Mr Van-Son had worked for Email Ventilation Pty Ltd for 12 years\nand had refused to accept an offer of decreased wages.<\/p>\n\n\n\n

Deputy President Sams, another very senior\nmember of the Commission, confirmed the same view as his colleague Commissioner\nCambridge, in finding that it is inappropriate to inform an employee of their\ndismissal via text message, email or phone. It is only in very rare\ncircumstances that it would be appropriate to do so, such as when an employer\nfeels that their safety is threatened.<\/p>\n\n\n\n

Further, Commissioner Cambridge and DP Sams\nexpressed that dismissal has a significant impact on employees. Employees\nshould accordingly be treated with dignity and respect during the dismissal\nprocess.  Commssioner Cambridge described\nthe actions of the employer in this case as \u201cunnecessarily callous\u201d; DP Sams\ndescribing the dismissal in his case as being \u201cdisgraceful and grossly unfair\u201d.<\/p>\n\n\n\n

In both cases it was found that the\ntermination of the employee was harsh, unjust and unreasonable, and significant\ncompensation orders were made.<\/p>\n\n\n\n

What Employers can Learn from these\nCases<\/strong><\/p>\n\n\n\n

While it can be a difficult conversation to\nbe having in person, and even though use of electronic methods of communication\nin business is increasing, an employee should always be informed of their\ndismissal in person. The size of the business or their main method of\ncommunication does not negate this obligation. Basic decency dictates this, and\nwe cannot see this changing any time soon, despite society generally embracing\ntechnology more and more each year. <\/p>\n\n\n\n

Using electronic means of communicating\ndismissal should only be used if the employee has been given ample\nopportunities to meet face to face and refuses to meet or there is a threat to\nsafety or there are geographical limitations.<\/p>\n\n\n\n

In our experience from a practical context,\nproviding a courteous and open forum to communicate the employer\u2019s decision,\ngreatly decreases the potential for employees to be aggrieved enough by the\noutcome to consider challenging the dismissal legally.<\/p>\n\n\n\n

A dismissal does not have to be affected in\nan adversarial or combative manner. Often, having a respectful conversation,\nwhich allows the employee to preserve their dignity, can be the best protection\nagainst the issue escalating unnecessarily. Even if the employee becomes\nabusive or emotional, the employer\/manager is well advised to remain as calm as\npossible.<\/p>\n\n\n\n

It is also recommended that employers\nprovide the employee with an opportunity to have a support person present.\nContrary to common belief, the Fair Work Act<\/em> does not create a positive\nobligation to provide this.<\/p>\n\n\n\n

The employer only must not \u2018unreasonable\ndeny\u2019 the employee a support person. In our experience, however, the best\npractice is to actively provide an employee an opportunity to have a support\nperson present during a termination or disciplinary meeting. While an employer\ndoes not have to unreasonably delay the meeting for the employee to find a\nsupport person. If a reasonable request is made, the request should not be\nrefused.<\/p>\n\n\n\n

The employer is entitled to impose\nconditions on who the support person is (for example not a lawyer) and also\nrequire a confidentiality agreement to be signed by the support person. The\nsupport person is not an advocate for the employee and in most cases should not\nactively take apart in the meeting. If they do repeatedly interrupt or\nintervene, it is appropriate to ask the support person to leave.<\/p>\n\n\n\n

Final Note<\/strong><\/p>\n\n\n\n

Employees will often bring termination claims\nwhere there is no merit, simply because they are aggrieved at the way they have\nbeen treated by an employer. Irrespective of the lack of merit, these claims are\ninconvenient and costly.  At other times,\nemployees will walk away from a potentially valid claim, often because they\nhold no grudge, and merely wish to get on with their lives.  In our experience, the best protection\nagainst potential legal claims arising from termination of employment, is to\ntreat your employees with dignity and respect. We may have become a society of\ndisconnected \u2018text-aholics\u2019, but when it comes to the dismissal of an employee,\nthe basic rules of common sense and human dignity still apply.    <\/p>\n","protected":false},"excerpt":{"rendered":"

Technology has fundamentally altered the way in which we interact. Five billion people use text messages globally every day.  Socially, it is one of our primary ways of interacting. Staggeringly, if you are dating someone born after 1984, there is a 53% chance that if that person ends your relationship, it will come to an […]<\/p>\n","protected":false},"author":1,"featured_media":1088,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[236],"tags":[39,14,166,30],"_links":{"self":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts\/1087"}],"collection":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1087"}],"version-history":[{"count":2,"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts\/1087\/revisions"}],"predecessor-version":[{"id":1090,"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts\/1087\/revisions\/1090"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/media\/1088"}],"wp:attachment":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1087"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1087"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1087"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}