01/08/2011

In May 2011, Fair Work Australia ordered an employer pay damages to its former employee because the termination of employment by SMS was considered harsh, unreasonable and unjust under the Fair Work Act 2009.

The decision in Sokolovic v Modestie Fashion Australia Pty Ltd (U2011/4117) involved a complex factual situation but part of the determination by FWA included comments on the employer terminating the employee by SMS.

The relevant facts are summarised as follows:

1. Casual retail salesperson/shop assistant employed for approximately 2 years on regular and systematic hours;
2. 2 December 2010, meeting between employer and employee about allegations of customer complaints;
3. 23 December 2010, the employee worked from 9am to midnight and was rostered to start her next shift at 9am the following day, 24 December 2010;
4. The employee asked a second employee to swap shifts so the employee could commence her shift later at 11am.
5. The employee called to say she was running late and would not be there until 11:30am;
6. The employee arrived at work to find out that clothing had been stolen from the store earlier that morning;
7. The employee assisted the employer with various matters relating to the theft and provision of replacement stock; On Christmas Day, the employee sent an SMS to the employer wishing her a Merry Christmas to which the employer responded;
8. On 26 December 2010, the employee was terminated by SMS which included the words:

“I have to let you go for two reasons.  Firstly you shouldn’t swap the shift without letting me know.  Secondly you even swap the shift you start one hour late…… That shows me you not taking me serious or the work.  Which hurts me enough and you can pick up your pay tomorrow and drop the key…”

On 7 February 2011, the employer completed the Small Business Fair Dismissal Code Checklist citing different reasons for the dismissal and claimed it amounted to serious misconduct.

In regard to the issue of the termination being by SMS, FWA held that it was unfair stating:

"I believe that this is an inappropriate means for notification of dismissal or reason(s) for dismissal.  The employer suggested that text messaging was the most common form of communication between the applicant and [employer].  There is of course no comparison that can be made between day to day communication …. and advice of termination."

"The implementation of dismissal by way of text message clearly deprived the applicant of any opportunity to respond, offer explanation or defence about any of the issues that may have contributed to the decision to dismiss."

The FWA did qualify the above statement and stated that in cases of gross and wilful misconduct or genuine prospect of violence or aggression a dismissal may not occur in a face-to-face meeting.

The FWA stated that reinstatement was not appropriate and therefore awarded damages in the sum of $9,992 which was the equivalent of 8 weeks' pay and took into account the employee had found alternate employment in 5 weeks at a lower rate of pay.

If you have any questions in regard to the above article, please contact TOWNSENDS BUSINESS & CORPORATE LAWYERS on (02) 8296 6222.