All’s not fair in text messages and employment contracts

by Stephanie Zillman08 Aug 2012

The damning allegations of nepotism at the embattled Health Services Union (HSU) came to a head this week, culminating in the text-message resignation of its national president, Michael Williamson.

Acting HSU national president, Chris Brown, confirmed he received and accepted a text message tendering Williamson’s resignation on Monday. The high profile resignation is a timely reminder for employers to review their policies in communicating contractual information via text. Importantly, in most circumstances employees are able to give notice via text, but in only very specific circumstances may an employer terminate via text.

According to the Fair Work Ombudsman (FWO), employees are obligated to give ‘reasonable’ notice to their current employer, and the notice periods usually depend on the relevant award, enterprise agreement or employment contract. While the National Employment Standards only stipulate the minimum periods of notice employers must afford employees, the guidelines are a rule of thumb for both parties:
 

Period of continuous service

Period of notice

 Not more than 1 year

 At least 1 week

 More than 1 year but not more than 3 years

 At least 2 weeks

 More than 3 years but not more than 5 years

 At least 3 weeks

 More than 5 years

 At least 4 weeks


There are penalties employers can pursue if an employee fails to give reasonable notice, such as withholding monies owed, and this would require close consultation with the workplace ombudsman.

According to FWO, the overarching element in resignations is that the employer must be satisfied that the resignation is unambiguous and unequivocal. Workplace relations consultant Sophie Tallis, from Employment Innovations (EI), told HC that resignation via text is not the ideal way for communication in employment contracts, but employers would likely be obliged to accept it as legitimate notice.

Firing by text

It would only be under extremely limited circumstances that an employer could fire by text, Tallis said. For example, there might be a case where an employee committed gross and wilful misconduct, and it may involve the prospect of continued violence or serious aggression that would mean an employer would not want to have a face-to-face meeting with the employee. “Those types of scenarios might justify notice of termination via text, but as I say it wouldn’t really be ideal and it would only be possible in those types of serious circumstances,” Tallis said.

In May last year, Fair Work Australia was highly critical of the sacking by text message of a Sydney retail assistant. The Commissioner, Ian Cambridge, said that when “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”. However, another sacking via text was upheld by tribunal – though the commissioner commented that these were very particular circumstances. Related story: It's ok to fire by text

Key takeaway

It’s likely to be held that an employer would have to accept a resignation by text, but it’s likely to be deemed unreasonable if an employer did the same thing for a sacking, Tallis said.

 

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COMMENTS

  • by Max Underhill 8/08/2012 3:35:38 PM

    It may be time to re look at the contract wording as it is not just dismissal or resignation that requires formal notification. A couple of contracts I am looking at talk about notification in writing handed to the employee or posted to the address provided (one by certified mail). A face to face meeting is going to be formalized in writing. Therefore a text or email will be notification of the event (such as you are resigning or termination) I would imagine this will be followed by formal communication and verification of the facts (the often means often specified in the contract).

  • by Michael C 8/08/2012 7:10:22 PM

    I would agree with Max that contractual obligation is the key. An SMS is difficult to reproduce in court unless you reproduce into a Stat Dec or similar. I am thinking about later denial of the SMS and pursuit of constructive dismissal. My preference has always been for a signed resignation over an email as a protection for all parties.

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