Firing via Facebook: Is it legal?

The recent termination of two employees’ positions via Facebook has caught the attention of HR professionals across the country, but was the employer legally allowed to sack staff in this manner?

Firing via Facebook: Is it legal?
The firing of two employees via Facebook has once again raised the issue of sacking staff through social media and texting.

Stuff reported that two young women were fired from their positions at Wellington eatery Pita Pit after new owners took over the shop. The story unfolded after one of the women saw her name was not listed on the roster on a private Facebook page. She contacted the owners and was told via Facebook she was no longer needed. The second employee checked the in-store roster only to find her name was not included and that she too had been fired after working at the store for 20 months.

Employment lawyer Karen Radich, barrister with Clifton Chambers, told HRM Online while there is no strict rule about how a dismissal is communicated,employers still have a duty to be fair and reasonable.

“There’s no law you must do it face to face or a certain way, but there is an overriding duty to be fair and reasonable and I think most people would agree it’s not fair and reasonable to sack somebody by text,” she said.

“In employment, the reason it is risky from a legal perspective is that there is a process to follow first. You have to meet with the person; give them an opportunity to explain their side of the story or if it’s a redundancy situation you have to talk to them first and get their input before a decision is made. Where you are doing things by text there’s pretty much no way an employer has met those process requirements.”

Radich said in this case there are also another possible offence that could see the employer hit with a lawsuit and that is whether the employee was in fact casually employed. She explained that even if the worker had signed a casual contract, it could morph into being a permanent, part-time position with varied hours if the pattern of work was ongoing and regular. In such a case the job could not be terminated without a formal notice period and explanation.

While not knowing the full facts of the case, Radich suggested from media reports it appeared the two women were not casually employed, considering they had to look at a roster for when they were working. Casual employees are typically called by the employer and offered hours of work because an employee hasn’t turn up or a similar situation.

Key HR Takeaway:
  • Whatever medium you choose, make sure to follow proper process when considering firing an employee.
  • Be cautious about using text messages to convey important employment concerns. It is probably much safer to discuss such concerns on the phone or in person.
  • Sending a text message/Facebook message to terminate someone’s employment could constitute a breach of good faith.
Related articles:
Think B4 U fire by txt
Choose your method of dismissal carefully

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