President of the United States, Donald Trump, fired his Secretary of State, Rex Tillerson, by tweet. It has been reported that Mr Tillerson learned his fate via the social media platform, which restricts messages to 280 characters or less.
Although the Fair Work Commission (FWC) has not reported a case involving the dismissal of an employee by tweet, it has suggested, in cases concerning dismissals by text message, that employers should carefully consider how they communicate an employee’s termination of employment and ensure that it is for a valid reason. The principle concern, regardless of the method of communication of termination, is that the terminating employee is afforded procedural fairness to allow the employee to challenge the employer’s reasons for termination.
So, what would happen if an employer follows President Trump’s behaviour and fires an employee? As these cases demonstrate, it is likely that the termination would be unlawful.
Termination by text message is inappropriate and gutless
In Kaye v Fahd & Ors, “one of the worst unfair dismissals on record”, a retail assistant who worked part-time for 19 years with a pristine employment record was fired via text message. The FWC agreed with an earlier decision’s (Sokolovic v Modestie Fashion Australia Pty Ltd) assertion that if an employer is not prepared to dismiss an employee face-to-face, “the basis for the decision is immediately opened to challenge upon the interference that the decision maker did not have, in all good conscience, sufficient confidence in the decision to act with any conviction”.
The FWC also highlighted that “… 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 successful challenge”. The nature of the text message thwarted Kaye from procedural fairness, and thus the dismissal was unfair.
In Zarina Abdul Rahim v Murdoch University Child Care Association t/as Murdoch University Child Care, the FWC affirmed the reasoning in Kaye and Sokolovic, asserting that dismissal by text message is an “inappropriate, and at worst, a gutless abrogation of an employer’s obligation to act reasonably and decently when ending an employee’s employment”. Thus, only under exceptional circumstances would a dismissal by text be appropriate. Considering the public and humiliating nature of a dismissal by tweet, it is unlikely that President Trump’s method of communicating a dismissal would be considered decent or reasonable in Australia.
But there are exceptions…
In Martin v DecoGaze Pty Ltd, Fair Work Australia (FWA), as it was then known, determined it was reasonable for the employer to communicate the final decision to dismiss the employee by text message as the employer wanted to finalise the matter before the employee returned from annual leave. Although, FWA admitted that “in most situations, termination of employment by telephone texting is not appropriate”, it handed an exception to uphold the dismissal as the result “would probably have been the same” and that the employer afforded the employee sufficient opportunity to defend himself following serious performance issues.
In Sokolovic, the FWC also noted that a dismissal by text message may be justified in cases of gross and wilful misconduct, or where face-to-face conduct may involve some genuine prospect of aggression or violence.
But, could a tweet constitute valid notice of termination?
Pursuant to section 117 of the Fair Work Act 2009 (Cth), an employer is required to give written notice to the terminating employee. Whilst, despite its failings, a text message may constitute valid notice of termination in certain circumstances, a tweet is in our view unlikely to be considered an effective form of written notice of termination. This is because it would be difficult to prove the employee’s receipt of the notice. Also, the nature of a tweet would severely discourage any opportunity for the employee to defend the reasons for the dismissal (such as performance).
It is very likely that a dismissal by tweet would be rendered as unfair, unjust and/or unreasonable. As the cases demonstrate, a dismissal by text message is difficult to justify. And given the public and humiliating nature of a dismissal by tweet, it would be no surprise if the FWC described a President Trump-like tweet in harsher terms than “brutal, gutless and outrageous” (as described in Kaye).