In Brief
Fair Work Australia (FWA) has sent a clear warning to employers thinking of dismissing their employees by text message, awarding a casual employee almost $10,000 compensation after she was summarily dismissed via a text message.
Sedina Sokolovic v Modestie Fashion Australia Pty Ltd [2011] FWA 3063
Sedina Sokolovic was employed by Modestie Fashion Australia Pty Ltd as a casual retail salesperson/shop assistant.
On 23 December 2008, Sokolovic felt tired and unwell after working a 15-hour shift until midnight and asked a junior colleague to swap shifts with her the following day. This shift swap meant that the colleague would start work at 9 am on Christmas eve and Sokolovic could start at 11 am.
The colleague agreed to the shift swap and Sokolovic arrived approximately half an hour to an hour late to discover that her colleague had not noticed the theft of around 25 items of clothing valued at over five thousand dollars.
On Boxing Day, the employer sent Sokolovic a text message which stated: "I have let you go for two reasons. Firstly you shouldn't swap the shift without letting me know. Secondly... you start one hour late knowing it will be busy and leaving [the junior colleague] alone."
Sokolovic lodged an unfair dismissal claim with FWA.
Is a casual employee eligible to lodge an unfair dismissal claim?
The first issue which FWA considered was whether Sokolovic was entitled to lodge an unfair dismissal claim.
The tribunal referred to the relevant provisions of the Fair Work Act which entitle a casual employee to lodge an unfair dismissal claim where they can establish that they were employed on a regular and systematic basis and had a reasonable expectation of continuing employment.
This requirement will generally be satisfied where the casual employee works to a clear pattern or roster, or is regularly offered work which is generally accepted. The employer did not dispute this element, so it was found that Sokolovic was entitled to lodge an unfair dismissal claim.
Can the Small Business Fair Dismissal Code assist employers?
The employer challenged the unfair dismissal claim on the basis that it complied with the Small Business Fair Dismissal Code, which provides that it is fair to dismiss an employee without notice when the employer has reasonable grounds to believe that the employee's conduct is sufficiently serious to justify immediate dismissal.
FWA considered the employer's answer to a question on the Small Business Fair Dismissal Code Checklist, which contained the employer's reason for summarily dismissing Sokolovic. Interestingly, this did not mention the shift swap, but rather Sokolovic's failure to fulfil a task given to her, arriving late, poor behaviour towards staff and customers and not taking her duties seriously. The tribunal found that none of these matters represented serious misconduct which would justify immediate dismissal and concluded that the employer had blatantly breached the Small Business Fair Dismissal Code.
How does FWA determine if a dismissal was unfair?
The tribunal then proceeded to the critical issue of whether the dismissal was harsh, unjust or unreasonable. As discussed in our previous article, Valid reason for dismissal the key to defending unfair dismissal claims, the criteria which FWA will consider in determining whether a dismissal is harsh, unjust or unreasonable include, among others, whether there was a valid reason for the dismissal, whether the employee was notified of the dismissal and whether the employee had an opportunity to respond.
No valid reason for dismissal
In considering the first factor, FWA initially found that although shift swapping without the employer's knowledge may constitute a valid reason for dismissal where the practice is prohibited in the workplace, there was evidence that shift swaps occurred frequently without the employer's advance knowledge.
Further, the late arrival also did not amount to a valid reason for dismissal, because under the modern award which applied to Sokolovic, as she had worked until midnight on 23 December, she could not be required to work before midday on the following day. In finding that there was no valid reason for dismissal, FWA concluded that the employer had made an "ill-considered and hasty decision which in reality, was a reaction motivated by a consuming desire to find blame for the larceny".
No notification and no opportunity to respond
The tribunal found it appalling for the employer to dismiss Sokolovic via a text message because it clearly deprived her of the opportunity to respond and it indicated the employer's lack of courage in meeting face-to-face with Sokolovic. According to FWA, dismissing an employee without face-to-face contact immediately opens the decision to challenge because it indicates that the employer did not have sufficient confidence in the decision to dismiss the employee with any conviction.
Because of these factors, FWA approved Sokolovic's claim.
Exceptions where an employee could be sacked by text message
The tribunal noted that there would be instances in which an employer could dismiss an employee via a text message. These would be unusual circumstances, either where the employee committed gross and wilful misconduct that was admitted or undeniably existent and no possible explanation or mitigation could alter the decision, or where face-to-face contact may involve some genuine prospect of aggression or violence. Sokolovic's situation did not fulfil these criteria.
Compensation awarded to the employee
Sokolovic did not seek reinstatement, so FWA awarded her compensation instead. The amount of compensation ordered was eight weeks' remuneration, amounting to $9,992.00. This was based on a number factors:
- Sokolovic had worked for the employer for two years
- It was likely that she would have worked for the employer for at least another two years if she had not been dismissed
- She had attempted to mitigate her losses by finding other employment five weeks after the dismissal
- She was paid at a lower rate at her new job
Advice to employers – follow the dismissal procedure in the Fair Work Act
This decision clearly highlights the importance of respecting the dismissal procedure set out in the Fair Work Act.Employers need to notify the employee of the reason for the dismissal and provide him or her with an opportunity to respond before any decision to terminate is formed.
FWA's decision also sends a warning to employers that they cannot assume there will be no consequences from dismissing casual employees who work on a regular basis at whim, because even a casual worker may be entitled to substantial compensation if their dismissal is found to be unfair by FWA.
For further information please contact:
Warwick Ryan, Partner
Phone: + 61 2 9233 5544
Email: wpr@swaab.com.au
Swaab Attorneys was the highest ranking law firm and the 13th best place to work in Australia in the 2010 Business Review Weekly Best Places to Work Awards. The firm was a finalist in the 2010 BRW Client Choice Awards for client service and was named the winner in the 2009 Australasian Legal Business Employer of Choice Awards.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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