Text messages and group chats under scrutiny in dismissal case
The Fair Work Commission (FWC) recently dealt with a case where a worker said his employment ended through digital workplace communications. The worker lost access to essential work information and received text messages that he argued effectively terminated his employment.
The case began when the worker filed an application under section 365 of the Fair Work Act 2009 for the FWC to address contraventions involving dismissal. He said two specific events marked his dismissal: being removed from a workplace WhatsApp group chat, and receiving termination messages from his project manager.
These events coincided with the worker's need to report a workplace injury. His experience brought forward questions about what constitutes a dismissal when work-related communications happen through digital channels.
At this demolition company, workers relied on a WhatsApp messaging group for daily work assignments. The worker testified that "each night, a message is sent out to everyone with all the information they need for the job the next day."
He said he was deleted from the chat before the work message for the next day was sent out.
After being hospitalised, the worker messaged his project manager about completing incident report paperwork for a workplace injury. This message was sent on August 14, 2024, at 7:08 pm.
The hearing proceeded without the employer's director, who later sent two emails explaining she was on leave. She had not requested an adjournment or asked to be excused from attending the hearing.
Key evidence came from text messages between the worker and his project manager. After the worker mentioned his hospital visit and workplace injury, the response read:
"Fair enough man, yeah I have to keep going running the business under a lot of pressure at the moment. Had to put someone else on, can't keep up with jobs at the moment. It's been unfortunate."
When the worker sought clarification about his workplace injury situation, the response stated: "[The director] advised me it's not going to work mate. Unfortunately, we had to hire someone else. All the best."
The worker's text messages showed he wished to continue employment, asking about completing an incident report form. While the employer later stated they had other roles available, the FWC found no evidence these were communicated to the worker at the time.
According to the FWC, the Fair Work Act 2009 defines dismissal under section 386(1)(a) as employment terminated on the employer's initiative. The FWC referenced the precedent set in Mohazab v Dick Smith Electronics Pty Ltd (No 2), which established that termination occurs when "the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee."
The FWC's decision noted: "While [the employer's] submissions state that they have roles within the company, there is no evidence that they informed [the worker] that he could work these roles around the time that they sent him the text message that said they had to hire someone else and wished him all the best."
The FWC concluded: "I am satisfied that [the employer] dismissed [the worker] within the meaning of s386(1)(a) of the Act."
Following this finding, the FWC dismissed the employer's jurisdictional objection and scheduled the matter for a conference under section 368 of the Act.
