This post is by our guest blogger Andrew Bland of BlandsLaw, and was published on the BlandsLaw website in July 2013:
Few people like confrontation. More and more of our daily exchanges are taking place via electronic media such as text and email, for delivering all sorts of information whether good, bad or indifferent.
Most people know their email etiquette – that negative news should not be delivered via SMS or email. Yet another recent case highlights that some employers are not aware of what is unacceptable – and even unlawful – when it comes to dismissing employees.
The Fair Work Ombudsman has launched legal action against the operators of a Perth restaurant, alleging a chef was paid nothing for almost four months’ work and then sacked by text message for calling in sick. For the full media release from the Fair Work Ombudsman, click here.
A termination that is not face-to-face could breach the law
Setting aside the underpayment and adverse action aspects of this case, it is worth reiterating the reasons why dismissal by text, email or other electronic means is never a good idea for either party – not least if you want to avoid falling foul of workplace laws.
Dismissing an employee via SMS or email could:
- deprive them of any opportunity to respond
- rule out procedural fairness in relation to the termination
- be seen as an unreasonable refusal to allow a support person to assist
Any termination that is not face to face, or at the very least does not give the employee the ability to respond to the reasons for a termination, or have a support person present at any disciplinary meeting, will breach the law. Firing via text, or email for that matter, is not an illegal action on its own, but can give rise to legal problems down the track.
Top tips for disciplining staff
In a recent article, we outlined some tips for employers when disciplining their staff. In summary, these include:
- Having a rigorous and regular performance management regime;
- Being consistent when dealing with similar circumstances;
- Allowing access to a witness or support person at any disciplinary meetings;
- Adopting a suitable forum for discussion; and
- Affording the opportunity of a right of reply.
These steps should all be part of the disciplinary procedure process which, in some cases, may lead to a termination.
Using text messages or emails to conduct disciplinary proceedings and terminations should be avoided. At best, it’s just not a good way to treat people. At worst, it could lead to costly legal proceedings.
For more information contact Andrew and the BlandsLaw team on 9805 5600.