FWC reveals consequences of skipping proper dismissal steps
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving text message termination. The worker lodged an application under section 394 of the Fair Work Act 2009 seeking a remedy for what she argued was an unfair dismissal from her position.
The worker stated she never received any warnings or discussions about her conduct. She explained that the first indication of any workplace issues came through text messages announcing her immediate dismissal, which she received while attending a university class.
In her evidence to the Fair Work Commission, she denied the allegations and provided context about her workplace situation on the day in question.
The case involved a part-time administration support/complaints officer at an automotive accessories wholesaler and retailer. According to the employer's submissions, on 1 October 2024, a senior manager found her not responding to radio calls and asleep at her desk. The worker denied being asleep and explained that a radio she shared with a colleague might have been off because her colleague wasn't working that day.
On 2 October 2024, a day she wasn't scheduled to work, the store manager attempted to call her while she was at university. After this unsuccessful contact attempt, she received text messages terminating her employment immediately. The employer had already removed her from the company's group chat system.
The employer, with six employees at the relevant time, qualified as a small business under the Small Business Fair Dismissal Code. The Commission accepted this classification for the purposes of the case.
The Small Business Fair Dismissal Code states, as quoted in the decision:
"It is fair to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal."
The Commission found insufficient evidence for immediate dismissal, noting:
"[The employer] did not provide sworn evidence from the person who witnessed the alleged misconduct or was a person who could have been said to have held the relevant belief for [the employer]. There was no evidence of an inquiry or investigation being undertaken to provide a basis for any belief held by [the employer]."
The only evidence presented was an email dated 15 November 2024 from an unidentified manager to the business owner stating they had found the worker asleep. The employer's representative could not provide direct evidence about the incident.
The Fair Work Commission found multiple procedural failures. The decision stated: "An opportunity to respond does not require formality, and this factor is to be applied in a common-sense way to ensure the employee is treated fairly."
Further emphasising the procedural shortcomings, the Commission noted: "The process that was adopted was crude by any measure. I do not consider that these factors explain or mitigate what was a very poor procedure that resulted in [the worker] losing their employment."
The Commission concluded: "Given the evidence available to me, I accept [the worker's] version of events and conclude that [the worker] was not asleep as alleged. I therefore find that there was no valid reason for dismissal related to capacity or conduct."
After finding the dismissal harsh and unreasonable, the Commission considered appropriate remedies. Taking into account that the worker secured new employment within three weeks, the Commission ordered:
"It is appropriate to make an order that [the employer] pay [the worker] an amount equivalent to 3 weeks wages based on [the worker's] average number of hours worked per week, that is: 3 weeks wages being 2.5 days per week (20 hours) at $33 per hour = $1,980 (gross)."
