In England, soccer is big business and the sacking of two coaches Paul Ince (by Blackpool) and Michael Laudrup (by Premier League Club Swansea) demonstrates the negative publicity that can be garnered by dismissal through text message.

Recently, several high profile incidents both in Australia and overseas have featured an employee being dismissed by their employer via text message.

Even at the highest level Courts and Tribunals will take a very dim view of dismissals by text message. Text message dismissals will garner negative publicity on the one hand and significant financial penalties and even reinstatement of an unwanted employee on the other.

For employees who earn above the high income threshold of $129,300 they will still have rights in breach of contract and other avenues such as General Protections. If Laudrup and Ince were sacked in Australia this might have been a possible avenue for them.

For employees who earn below the high income threshold, dismissal by text message may enliven the right for an employee to file an unfair dismissal claim. And on assessment of previous decisions by the Fair Work Commission (Commission), the unfair dismissal claim may be successful.

The dismissal case of Kaye v Fahd and others [2013] FWC 1059 should serve as a wake-up call to businesses that largely communicate with their employees via text message. In Kaye v Fahd an employee of 19 years was dismissed by way of the following text message:

“I am no longer contracting to MCT as of today, therefore your services are not required with immediate effect. Regards Alex.”

The Commission was particularly scathing of the employer’s chosen way of communicating the dismissal describing the dismissal “by a brief SMS message was brutal, gutless and outrageous”.

The Commission has made it very clear in their decision that even if text message or SMS communication is how an employer and employee usually communicate it is still an inappropriate means to dismiss an employee.

Employers should ensure that dismissal of an employee is not taken lightly, in many cases instant dismissal is not appropriate and a process should be followed to give the employee an opportunity to improve their performance or conversely an opportunity to respond to allegations of misconduct.

If Laudrup and Ince were managers in Australia there would likely be serious ramifications for their employers.

The Workplace Relations and Employment Law team can assist employers mitigate risk of a successful claim by an employee.

Written by
Jonathan Mamaril
Principal & Director, NB Lawyers – the Lawyers for Employers
07 3876 5111
jonathanm@nb-lawyers.com.au

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