A recent case has highlighted the risk of terminating employment via text. Notably, you cannot legally dismiss an employee without written notice to the worker being provided the day of the termination as per the Fair Work Act 2009 (Cth). This written notice can include sending phone correspondence, email, SMS or Facebook message, provided that:
- at the time the notice was provided, it was reasonable to expect the employee saw the message;
- and that the employee consented to the information being communicated via these means.
Therefore, if you intend to terminate employees via text, you should make it crystal clear in employment agreements or policies about the use of online technology.
Particularly in the COVID-19 circumstances now faced, communicating notice face to face to employees may not be possible. As put by the Employment Law Practical Handbook, ‘The key risk with dismissal by way of text message is that it clearly deprives the employee of any opportunity to respond and offer explanation or defence about any of the issues that may have contributed to the decision to dismiss’. The only circumstances in which notice of dismissal might be sent by text or email is where:
- it is common practice for employee communications to be sent in this way (and ideally this should be reflected in appropriate provisions in policies and contracts); and
- the employee has been given a reasonable opportunity to respond to the grounds for dismissal, either in writing or in person. The in-person requirement can be waived if there is a real prospect the employee will behave in an unacceptable manner at the meeting, or the employee is unable to attend in person because of physical distance.
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