Thousands in compensation for “unnecessarily callous”, “disgraceful” dismissals by text

Two recent decisions of the Fair Work Commission (FWC) have reiterated the importance of avoiding termination by any other means than face-to-face, with the sacked workers in both instances being awarded compensation for their dismissals described as “repugnant” and “grossly unfair”.

Commissioner Cambridge has awarded a casual security guard more than $12,000 compensation following his summary dismissal by text message in February, condemning the process adopted by the employer as “repugnant”, saying they “acted with a perfunctory disregard for basic human dignity”.

The employee had worked for the small security contractor for two years, having been regularly rostered for shifts averaging 2.5 days per week when he received a text message from the company director’s wife and payroll manager saying: “Effective immediately we no longer require your services”. Receiving no immediate response to his “please explain” text and follow-up phone call, the security guard then drove to the company’s office and confronted the director’s wife, only to be told that as a casual he was owed no explanation for their decision to discontinue his employment.

The employer sought to argue that the business normally communicated with employees by text adding that, “as a generational thing, people don’t use emails these days”. When pressed, the employer was not able to connect the dismissal to any incident of serious misconduct, with the Commissioner concluding the true motivation for the dismissal “must remain something of a mystery”, finding merely that, because the employee was engaged and paid as a casual, the employer believed “it could dispense with his services whenever it felt like it”.  

Commissioner Cambridge described the dismissal procedure as “unconscionably undignified” adding that it reflected “very poorly upon the character of the individual or individuals responsible”. He was particularly scathing of the manner in which the employee was notified of his dismissal, commenting that:

“Notification of dismissal should not be made by text message or other electronic communication. Unless there is some genuine apprehension of physical violence or geographical impediment, the message of dismissal should be conveyed face to face. To do otherwise is unnecessarily callous. Even in circumstances where text message or other electronic communications are ordinarily used, the advice of termination of employment is a matter of such significance that basic human dignity requires that dismissal be conveyed personally with arrangements for the presence of a support person and documentary confirmation.”

Finding the security guard could have reasonably expected to be employed for a further six months, Commissioner Cambridge ordered he be paid $12,465 in compensation.

Wallace v AFS Security 24/7 Pty Ltd [2019] FWC 4292 (28 June 2019)

The day prior, Deputy President Sams of the FWC was equally scathing in his assessment of another dismissal delivered by text message, rebuking the sole director of the small business for the “hopeless manner” in which he orchestrated the termination of a supervisor with lengthy service.

The supervisor had been employed for 12 years when he was dismissed in July 2018 after refusing to work the same hours for a significant pay cut. The worker had abruptly left the workplace after rejecting a reduction in his rate from $31.78/hr to $25/hr when he received a text from the director saying: “Effective immediately I give notice of termination of your employment, please note you are required to work your notice period”. The supervisor returned to work and served out his notice period but the employer failed to pay his full entitlements or superannuation balance.

The director failed to participate in two scheduled conciliation conferences in October and December 2018. Under cross-examination during the Hearing, the employer sought to argue the supervisor had been spoken to many times about his conduct and performance, which included blocking other employees from using machinery and abusing new workers but had to ultimately acknowledge the supervisor had never been issued with a written warning. The director also conceded he might have made a mistake when calculating the supervisor’s outstanding entitlements on termination.

Deputy President Sams considered the employer’s evidence, which included a two-page document he described as “a potpourri of submission, commentary, conjecture and opinion”, but was unable to find a valid reason for the supervisor’s dismissal saying any reasons offered “were not only ‘capricious’ and ‘fanciful’, but were contradictory and irreconcilable”.

The Deputy President did not accept that the size of the small business and lack of access to dedicated HR expertise could excuse the “disgraceful and grossly unfair” process adopted, adding that “no employer with any sense of common decency, would have effected a dismissal in the hopeless manner admitted to in this case; particularly given the [supervisor’s] value to the business and his long period of service.”

Deputy President Sams took the opportunity to reinforce that dismissals should, as often as possible be carried out in person, reiterating that “informing an employee of their dismissal by phone, text or email is an inappropriate means of conveying a decision, which has such serious ramifications for an employee.”

The Deputy President categorized the dismissal of the supervisor as “breathtaking in its complete disregard for any modicum of natural justice” but ruled against reinstatement. Further submissions have been sought from the parties on compensation, with the supervisor seeking the maximum award of six months’ wages.  

Thai v Email Ventilation Pty Lt [2019] FWC 4116 (27 June 2019)