Call me maybe? Texting and the employment relationship

Last month, the Fair Work Commission (FWC) handed down a decision criticising a manager for dismissing an employee by text message.

In the decision, Deputy President Sams said he was appalled by the text:

“It was at best, inappropriate and, at worst, a gutless abrogation to act reasonably and decently when ending employment.” (at [34] Abdul Rahim v Murdoch University Child Care Association [2016] FWC 2191).

This decision is far from the first condemning employers for dismissing employees via text message, but it does highlight the FWC’s ongoing frustration with employers who have no regard for procedural fairness.

In Hain v Ace Recycling Pty Ltd [2016] FWC 1690, Deputy President Ashbury also raised the issue and noted that a text message might be understandable if it is used as a trigger for beginning the process of procedural fairness, but a text message is certainly not acceptable for effecting a dismissal.

This is an important point for employers – the position of the FWC is not that texting employees is entirely unacceptable, it’s that if you are going to communicate with employees using such means you need to accompany it with proper processes. For example, an employer should meet with their employee face-to-face to discuss the allegations against them and afford the employee the opportunity to respond before a final disciplinary decision is made. Employers also need to keep good, clear written records of their dealings with employees. Records are essential for demonstrating that a proper process has been followed and that employees have been dealt with reasonably and decently; text messages carried around on a manager’s phone are most unlikely to fit the bill of good record keeping.

And it’s not just dismissal that employers should be careful of when it comes to using texting or instant messaging platforms. Hiring should always be done in a formal manner. A text message saying, “Congratulations, you’ve got the job. Your pay will be $XYZ, start Monday” is hardly a substitute for a contract of employment. Congratulating someone on their new job via text is a great way to make them feel welcome but no matter how junior, senior, casual or permanent a job offer is, employers should follow up with a well drafted written offer of employment.

Beware of the risks

One of the risks associated with communicating via text or other similar mediums is the propensity for tone to get lost in translation. A few poorly spelt, thumb-typed words followed by a couple of emojis can be easily misinterpreted, and never more so than when tensions are already running high.

Also, resignation from an employee via text can be a murky business for employers and sometimes deciphering whether an employee has actually resigned or not can be incredibly difficult.

This is where HR becomes so important. Human resources staff are there to support business owners and employers through these difficult moments and provide the follow-up that might be lacking in day-to-day communications between managers and employees. Human resources are there to bring to the human element into the equation – they aren’t called human resources for nothing!

Human resources can help to take the heat out a situation where miscommunications have occurred between managers and employees simply by being informed and involved in the situation at the earliest opportunity.

Developments in technology are increasing workplace connectivity and that is something to be encouraged. However, employers should always do the important things like hiring and firing in person and, as Deputy President Sams put it, act reasonably and decently when dealing with end of employment communication.

Shane Koelmeyer is a director of specialist law firm Workplace Law.