Commission Warns Against Firing Employees by Phone, Text and Email

Cachia v Scobel Pty Ltd ATF [2018] FWC 2648

Factual Background. In this case, the Commission considered an unfair dismissal application in relation to the applicant's dismissal from her employment with the respondent.  

Decision.  The Commission dismissed the application and concluded that the applicant had engaged in serious misconduct, including forcefully pushing, humiliating and belittling colleagues, and being dismissive of the authority of the manager of the respondent's business. The Commission concluded that the respondent had complied with the Small Business Fair Dismissal Code and had awarded the applicant procedural fairness prior to her dismissal.  

However, in its decision, the Commission criticised the co-owner of the respondent's business for dismissing the applicant by email. The Commission stated: "I do not consider that informing an employee of their dismissal by phone, text or email, to be an appropriate means of conveying a decision which has serious ramifications for an employee". The Commission noted that dismissal by way of email, text or phone should not occur unless there is a "genuine apprehension of physical violence or geographical impediment". 

Lessons for Employers. It is best to terminate an employee's employment in person. However, if this is not possible, termination should be effected by registered mail and email. Termination should only be effected by email alone where there is a genuine apprehension of physical violence or geographical impediment. Text messages should be used only in conjunction with other communication methods, for instance to notify the employee that a letter has been posted to him or her by registered mail.  

Commission Confirms Employees Do Not Accrue Leave During Lockout

CEPU; CFMMEU v Carter Holt Harvey Woodproducts Australia Pty Limited [2018] FWCFB 2731

Factual Background.  The Communications, Electrical and Plumbing Union of Australia ("CEPU") and the Construction, Forestry, Maritime, Mining and Energy Union ("CFMMEU") applied to the Commission to determine a dispute under the Carter Holt Harvey Wood Products Australia Pty Limited Myrtleford Enterprise Agreement 2013 ("Enterprise Agreement"). The dispute generally related to the accrual of employees' leave during a "lockout" period (where the employer refused to allow employees to work in response to protected industrial action taken by the employees and unions).  

In February 2018, the Commission held that the lockout period was not "service" within the meaning of the FW Act, and therefore employees did not accrue annual leave during this period. The CEPU and the CFMMEU appealed to the Full Bench of the Commission against this decision. 

Legal Background. Section 87 of FW Act provides that employees accrue annual leave "progressively during a year of service". Section 22 of the FW Act provides, among other things, that "any period of unpaid authorised absence" does not count as "service".

Decision. The Full Bench of the Commission concluded that a "period of unpaid authorised absence" included an employer lockout period. Accordingly, employees did not accrue annual leave or long service leave during the lockout period.  

The Commission considered that this interpretation "accords more readily with s.416 of the FW Act, which provides employers with the discretion to refuse to pay their employees for periods of employer response action". The Commission stated: "A key principle reflected in the scheme established by Part 3-3 of the FW Act is that employees who take protected industrial action should be aware that not only will they not be paid for the period of their own industrial action, but also that they may not be paid for any period of employer response action that follows as a result of their own industrial action"

Lessons for Employers.  This decision confirms the general position that employees will not accrue annual or long service leave during any strike or employer lockout period.