Is kicking an employee out of WhatsApp considered dismissal?

In recent years, employers have increasingly turned to social media groups to roster shifts and coordinate employee scheduling. While this has enabled employers to assign shifts quickly and easily to employees, it has also raised the question of whether an employee can be dismissed through them.

The issue came up recently in a case involving a French-themed patisserie where the employee worked as a barista. The employees worked according to a roster published by the employer's general manager. It was published weekly via a WhatsApp group.

According to records, rosters are ordinarily published on either Saturday or Sunday before the next roster period starting on a Monday. Members of the WhatsApp group include the current staff of the employer.

Feeling unwell

Around June 2022, the applicant texted the employer's general manager with the following message, and explained why she couldn't come to work: "Yesterday was really bad and I injured myself. I'm trying so hard but I don't think I'm capable today. I'm sorry."

The general manager responded quickly with "Not good to hear. I hope you are better soon x".

The owner found out about this exchange and considered it "alarming." She called the employee and the latter said that "she had attempted to take her own life" a few days before she sent the text.

The employer gave evidence that she was distressed by this news and wanted to ensure that the employee was safe and felt supported. Her messages said the following:

"Darling remember, what [ever] you are going thru, you need to learn to love yourself the way you are and never ever stay at home if you are not feeling well. Come to work. Trust me you will feel better. Get up, get dressed and come keep yourself busy."

Pressured to work?

After the employee went to the workplace after the incident, she said that "she felt pressured to do so." The owner said that she understood the employee was a passionate photographer but felt concerned about the latter's wellbeing and noted that she was in "no state for work" as a barista.

Instead, the employer invited her "to attend the workplace again" after a few days "to do some food photography." On record, the owner said that "she was trying to find paid work for the employee to do that would not involve dealing with customers." The employee agreed.

The work roster was then issued for the following week via WhatsApp. Consistent with the owner's view that the employee was in "no state for work," the general manager did not allocate the applicant any shifts.

Can you block an employee's access to the work roster without notice? HRD reported about another Fair Work Commission (FWC) case that dealt with an unfair dismissal application of a worker who claimed their employer wrongly blocked her from accessing their work roster, which allegedly "brought the employment relationship to an end."

Removed from chat group

The employee did not show up or notify the employer that she would not come by to perform the food photography. After a few days, the employee tried to communicate with the employer, and the latter attempted to arrange a meeting the next day.

The employee did not attend the meeting, as they did not agree on a time, and did not respond to a text message from the employer. Afterward, the owner noted that the employee "stopped turning up for work and had ceased communicating with me. Consequently, I concluded that [she] no longer wished to be employed and had resigned. I accepted the resignation and have proceeded on the basis that she did not want to work anymore."

Similarly, the FWC also dealt with a worker who claimed unfair dismissal because she refused to perform tasks outside her job description, saying that she was "uncomfortable” doing them. The employer claimed that it was the worker who refused to do any work and raised the defence of the worker’s “renunciation.” 

Several days later, in this case, the employee was removed from the WhatsApp group. The general manager gave evidence that he removed the applicant from the group while removing three other persons who were no longer employed. The general manager said, “I remove employees from the WhatsApp group when their employment terminates (whether termination be at the initiative of the employer or the employee).”

Consequently, the employee filed an unfair dismissal claim, arguing that “even if the employer genuinely believed that she resigned from her employment, they were still obliged to confirm her intention.” She raised that she was forced to resign and dismissed at the employer’s initiative.

The FWC’s decision

When the owner arranged the food photography work to provide her with “paid work” that “would not involve dealing with customers,” the Fair Work said that it did not consider the arrangement “to be a shift of the kind the applicant would ordinarily undertake as a barista.”

“Rather, it was an invitation from [the business owner] to undertake alternative paid duties in the workplace,” the decision said.

It went on to say that it was not “reasonable” for the employer to conclude that the employee no longer wanted to work.

“[The] WhatsApp group was the method of communicating rosters to employees, [and] without which applicant could not be notified of work or participate in ongoing employment.”

In addition, the FWC rejected the contention that the employee’s failure to contact the employer demonstrated that she did not wish to remain employed or supported its position that the applicant resigned.

“I do not accept that it was incumbent upon the applicant to contact the respondent before being re-allocated shifts.”

In the end, the commission was satisfied that the employee’s removal from the WhatsApp Group was “the principal contributing factor” that ended her employment. Thus, it ruled that the employee was dismissed at the employer’s initiative. The FWC has since referred the case for conciliation.