пятница, 8 ноября 2013 г.

The dismissing an employee via text message – Part 2

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Why it is risky to dismiss an employee via text message - Part 2
Friday, 8th November, 2013
By Jessica Oldfield 

In today's Workplace Bulletin:
  • Why it is risky to dismiss an employee via text message – Part 2
  • Case law 2: Dismissal via text message
Dear Reader,
In Wednesday’s bulletin, Charles Power gave us a rundown of a recent case in which an employee was dismissed via text message. The dismissal was found to be unfair by the Fair Work Commission (FWC).
Today, Charles will explain another case quite similar to the first (who knew it was so common to fire people via text message?). This case was found by the FWC to be one of the worst cases of unfair dismissal that they have seen! It shows us exactly why it is so risky to dismiss an employee via SMS.
Have a great weekend!
Jessica Oldfield
Jessica Oldfield
Workplace Bulletin
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Case law 2: Dismissal via text message
By Charles Power
Editor-in-Chief, Employment Law Practical Handbook

In Kaye v Fahd and others (2013), a retail assistant had worked part-time on weekends for her employer for 19 years. In June last year, she received a text message from the business’s proprietor telling her that her services were no longer required: "I am no longer contracting to MCT as of today, therefore your services are not required with immediate effect. Regards Alex."
The Fair Work Commission found that there was no valid reason for dismissal and upheld the unfair dismissal claim. 

Deputy President Sams found that the employee was dismissed "without any notice, for no reason and with no warning". 

"Moreover, the means of communicating her dismissal, by a brief SMS message was brutal, gutless and outrageous". 

Deputy President Sams said he agreed with Commissioner Ian Cambridge in another case (Modestie Fashion), in which Commissioner Cambridge warned employers that if they are not prepared to dismiss an employee face-to-face, "the basis for the decision is immediately opened to challenge upon the inference that the decision maker did not have, in all good conscience, sufficient confidence in the decision to act with any conviction". 

"Consequently if dismissal is implemented by any means other than face-to-face communication both the legal and ethical basis for the decision to dismiss is likely to face strong and successful challenge", Commissioner Cambridge said. 

Deputy President Sams noted Commissioner Cambridge's comment in Modestie that if SMS is a regular form of communication between an employer and employee for rosters or working hours, it is "an inappropriate means for notification of dismissal or reason(s) for dismissal". 

Commissioner Cambridge had said the dismissal by text message deprived the employee of the opportunity to respond to the dismissal or raise any defence to "issues that may have contributed to the decision to dismiss". 

Charles Power

Charles Power
Employment Law Practical Handbook

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