Sacking by phone, text or email only acceptable in ‘rare circumstances’

[Ulquiorra]

EMPLOYEES should only be sacked by phone, text or email in “rare circumstances” such as when there is a genuine risk of physical violence, the Fair Work Commission has warned.

The industrial relations tribunal made the comment in throwing out an unfair dismissal case, finding in favour of the employer but “making one criticism of the process”.

That was despite the employer complying with the Small Business Unfair Dismissal Code laid out by the workplace cop, the Fair Work Ombudsman, which makes no requirement for employees to be let go face-to-face.

Former Mona Vale beauty salon employee Anita Cachia filed an application for unfair dismissal after being “summarily dismissed” by Emerse Skin & Laser in November 2017 due to allegations of serious misconduct, including bullying colleagues.

Ms Cachia was accused of being physically and verbally abusive. In the worst incident, she was alleged to have “aggressively pushed” a 22-year-old employee “out the door and slammed the sliding door in her face”.

She was also accused of bullying a Nepalese employee, “barking” orders at her and ordering her to undertake unnecessary tasks such as repeatedly cleaning the floors. The woman said she was told to use her hands and was “treated like a dog”.

She was dismissed in telephone call by the salon’s co-owner, Scott McLennan. In a follow-up email, he told her she was terminated “because, after investigating the matter I was convinced on the balance of probabilities that you had behaved unacceptably towards the other staff”.

Ms Cachia emailed that she was “confused” and felt “harassed with phone calls”. “Please stop pressuring me with ultimatums I can’t handle the harassment,” she wrote. “I’m highly medicated and as I’ve said its to [sic] much stress to reply straight away I need to seek proper advice to understand.”

Mr McLennan said he had “not harassed” her and was “merely trying to get this sorted out with you”. He said he was prepared to pay her for a further two weeks’ as a gesture of goodwill if she signed a deed of release, to avoid the cost of defending a possible unfair dismissal claim.

Shortly afterwards, she filed a worker’s compensation claim against the salon stating she had been “psychologically damaged by this experience”.

In January, Ms Cachia texted Mr McLennan’s wife. “I am taking this to a court of law and after the first stages I want to take other matters to court,” she wrote.

“You no longer scare me. You have bullied me for so long Isabel. BUT I received very good legal advice and I know my rights, not the ones you make up for me!!!!! You will not bully me any more!!!!

“I am exposing everything EVERYTHING!!!! I witnessed in YOUR business!!!! And NO, I am NOT settling out of the court. The public are not safe in your unhygienic practice!!!! Let’s leave this for a court of law!!! Anita!!!!”

Fair Work Commission deputy president Peter Sams said that Mr McLennan’s compliance with the Code was “robust and thorough”.

The Code states that it is fair for an employer to summarily dismiss an employee without notice or warning “when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious”.

“Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures,” the Code says.

Mr Sams said “on any objective view, these matters constituted serious misconduct”. “The applicant posed a threat to the health and safety of other employees, which left the respondent with no other choice, but to terminate her employment,” he said.

But he criticised the decision to sack Ms Cachia by phone.

“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 such serious ramifications for an employee,” he said.

“As there had already been one meeting with Mrs McLennan, I can see no reason why a further meeting could not have been organised for the purpose of explaining the respondent’s decision and discussing the termination arrangements.”

Mr Sams said he noted that “there is no stated requirement in the Code (or the Code’s checklist) that the employer must convey the dismissal decision, in person”.

“However, I consider it would only be in rare circumstances that a decision to dismiss an employee should not be conveyed in person,” he said.

“For example, it may be necessary where the employer believes a dismissed employee might be a threat to the safety of his/her employees or because the employee expressly did not want a ‘face-to-face’ meeting to hear the outcome of any disciplinary process.”

He said he agreed with an earlier decision by Fair Work Commissioner Ian Cambridge which found “notification of dismissal should not be made by email communication”.

“Unless there is some genuine apprehension of physical violence or geographical impediment, the message of dismissal should be conveyed face-to-face,” Mr Cambridge said.

“To do otherwise is unnecessarily callous. Even in circumstances where email or electronic communications are ordinarily used, the advice of termination of employment is a matter of such significance that basic human dignity requires that dismissal be conveyed personally with arrangements for the presence of a support person and documentary confirmation.”