Why it is risky to dismiss an employee via text message - Part 1
Wednesday, 6th November, 2013By Jessica Oldfield
In today's Workplace Bulletin:
- Why it is risky to dismiss an employee via text message - Part 1
- Case law 1: Dismissal via text message
Dear Reader,
As we move further along into a hi-tech world, our social lives are changing. Now rather than calling someone, we often send a text message. But is it ok to use it as a principle form of communication for work matters? For instance, can you dismiss an employee via a text message?
As we move further along into a hi-tech world, our social lives are changing. Now rather than calling someone, we often send a text message. But is it ok to use it as a principle form of communication for work matters? For instance, can you dismiss an employee via a text message?
Technically, there's nothing wrong with this. But… as we know, when you dismiss an employee for misconduct or performance issues, you must go through certain procedures. I covered this in a bulletin in January, 'What you need to consider before dismissing an employee'. One of the most important things you must do before dismissing an employee is present them with the allegations and allow them an opportunity to respond. Is it really feasible to do this via text message?
Two recent cases show just how risky it is to dismiss someone via a text message. Charles Power will take us through the first one today, and the second one on Friday.
Over to Charles…
Jessica Oldfield
Editor
Workplace Bulletin
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Case law 1: Dismissal via text message
By Charles PowerEditor-in-Chief, Employment Law Practical Handbook
CASE LAW #1:
In Sheppard v Rivershow Pty Ltd (2013), an employee sent text messages to his employer (the business's owner) to ask when he would be paid his fortnightly pay. The business owner responded by text saying that it was sometimes hard for him to pay the wages on time.
"Some were paid after 4pm [the previous day]. I can't tell if you were one of them," the text said.
In Sheppard v Rivershow Pty Ltd (2013), an employee sent text messages to his employer (the business's owner) to ask when he would be paid his fortnightly pay. The business owner responded by text saying that it was sometimes hard for him to pay the wages on time.
"Some were paid after 4pm [the previous day]. I can't tell if you were one of them," the text said.
The employee then tried to phone owner's wife (a co-owner of the business) by phone, but sent her a text message when he couldn't get through to her.
In a second text from the owner, the owner couldn't confirm whether the employee had been paid or not, and stated that he did not have time to process pays.
The employee texted, "How am I supposed to take this and rely on money each fortnight? If you want me to clean for tomorrow's trade, then I need to speak to you first," he said in the text to the owner's wife.
Half an hour later, he received a text from the owner telling him not to bother coming in.
The Fair Work Commission found this to be an unfair dismissal. The Commission noted that while part of the employee's text message to the owner's wife may be considered impertinent or impetuous, it did not justify immediate dismissal. The reason for dismissal on an objective assessment of the facts was not sound or defensible.In a second text from the owner, the owner couldn't confirm whether the employee had been paid or not, and stated that he did not have time to process pays.
The employee texted, "How am I supposed to take this and rely on money each fortnight? If you want me to clean for tomorrow's trade, then I need to speak to you first," he said in the text to the owner's wife.
Half an hour later, he received a text from the owner telling him not to bother coming in.
Regards,
Charles Power
Editor-in-Chief
Employment Law Practical Handbook
Top 10 Employee Firing Mistakes
2. Not Putting
Standard Policies in Writing
3. Not Having Proper Appraisal
Documentation
4. Not Having a Legitimate Job-Related
Reason
5. Failing to Prepare for Termination
6. Taking Too Long
7. Not Having a Follow-Up Plan
8. Talking Too Much
9. Letting the Word Get Out
10. Arguing
Charles Power
Editor-in-Chief
Employment Law Practical Handbook
Top 10 Employee Firing Mistakes
1. Failing to Have a Signed Employment Agreement or Offer Letter
It's always to your advantage to have an agreement
stating that the employee understands the hiring terms and the
"at-will" nature of employment, meaning either the employer or the
employee can terminate the employement releationship at any time.
2. Not Putting
Standard Policies in Writing
Whether it's in the form of an official
handbook or several pages stapled together, you should have clear policies in place so that employees know exactly
what is and is not expected of them while employed.
3. Not Having Proper Appraisal
Documentation
If someone is performing poorly or there
is any indication that you may need to terminate an employee, you should keep
records of warnings or discussions regarding poor performance or failure to
abide by company policies. You will want documentation in the event the
employee takes legal action after being terminated.
4. Not Having a Legitimate Job-Related
Reason
In many states, you do not have to provide
a reason for firing someone. However, whether you share it
with the employee or not, you should always have a legitimate reason for
terminating someone if you do not want to get hit with a discrimination
lawsuit.
5. Failing to Prepare for Termination
Know what you're going to say, and have
all paperwork prepared ahead of time. If there isseverance pay or anything else owed to the employee,
such as vacation pay, you should have a check ready to give them.
In addition, you need to be knowledgeable
about state and company policies. If you are unsure, read up on them in
advance, or even call the state unemployment office for clarification.
6. Taking Too Long
If you are planning to terminate someone
and continue to wait for the right time, you can run into several problems.
First, the employee may get wind of the
situation and become disruptive, slack off completely, or begin to set up a
lawsuit situation. Second, other people in the department may become aware that
something is up, and morale will drop quickly. Therefore if the decision has
been made, act promptly.
7. Not Having a Follow-Up Plan
Terminating someone may be the best way to
solve a problem, but the work they were responsible for will still need to be
done. Be prepared to address your next course of action, which may be dividing
the job among other employees, hiring someone new, oroutsourcing the work.
8. Talking Too Much
Too often employers talk too much and say
the wrong thing. Don't make promises you can't keep, such as offering to help
the employee find another job, and don't make excuses or pass the blame.
Keep the conversation to a few minutes,
and stick to the matter at hand. There's nothing wrong with saying that you are
sorry, but be careful regarding anything else you say.
9. Letting the Word Get Out
A slip of the tongue can be a big mistake.
Nobody else should know about the impending termination except those involved
in the decision-making process. The individual being terminated deserves to be
treated with respect and dignity, and not be embarrassed because everyone in
the company knows they are being terminated.
10. Arguing
A common mistake is getting into an argument
with the employee being terminated. You should not let this happen. If they are
angry, let them vent. You can only lose if you start arguing back.
If you suspect that the employee could
potentially cause a scene during your meeting, you may want to have another
person in the room with you -- either a senior member of your staff or perhaps
even a security guard.
