Casual employment is a popular option for employers who want flexibility. However, employers should not assume that this flexibility allows them to dismiss casual employees without due process or consequence. In the recent decision of Kurt Wallace v AFS Security 24/7 Pty Ltd, an employer was harshly criticised for summarily dismissing a casual security guard via text message, with the Fair Work Commission (FWC) describing the dismissal as a “repugnant process”.
Beware of the risks when dismissing a casual employee
On 5 February 2019, the security guard received a text message from his employer that said, “Effective immediately we no longer require your services as a casual patrol guard with AFS Security”. Prior to his dismissal, the security guard had received some verbal counselling, but this did not proceed to any sort of formal warning. Upon seeking clarification about his dismissal, he was simply told that “as a casual employee, an explanation for his dismissal was not required”.
The FWC was satisfied that the security guard was eligible to make an unfair dismissal claim as a casual employee. This was because the FWC found that the security guard was employed on a regular and systematic basis and had a reasonable expectation of ongoing employment. Although the security guard was described and paid as a casual employee, the security guard was employed on a regular and systematic basis because his work schedule was primarily determined by regularly issued rosters. The FWC was also satisfied that the dismissal was not consistent with the small business fair dismissal code.
As the security guard was eligible to make an unfair dismissal claim, the FWC went on to consider if the dismissal was harsh, unjust or unreasonable. No reason was provided to the security guard when he was summarily dismissed, other than the text informing him that his services were no longer required. Even at the FWC hearing, the employer did not elaborate on the true motivation for the dismissal. On this basis, the FWC was left to conclude that there was not a valid reason for the dismissal. The employer’s lack of a reason also left the security guard with no opportunity to respond to any reason for the dismissal.
Communicating a dismissal
The employer and its employees primarily used text messages to communicate with each other. The employer argued that this method of communication was a “generational thing” because “people don’t use email these days”. The FWC did not agree and stressed that an employer should avoid notifying an employee of their dismissal through text messages or other electronic communication wherever possible. Unless there is a risk that the employee will become aggressive or it is not geographically possible to meet face to face, any termination process is distressing and should be dealt with in person, allowing for a support person to be present.
The FWC described the dismissal as callous and repugnant and found that, “in circumstances where the employer had acted with a perfunctory disregard for basic human dignity, no mitigation or justification for such manifest insensitivity could arise from the absence of specialists or expertise in human resource management”.
It is important for employers not to assume that the flexibility of casual employment enables unlimited informality or a complete lack of procedural fairness. Where businesses communicate with their employees through text messages or emails, this should not extend to dismissal processes. If an employer is unsure whether an employee is eligible to make an unfair dismissal claim, it is still best practice to implement procedural fairness as part of a termination process by providing a reason for the dismissal and conveying this message in person.
Lessons for employers:
- Employers should take all reasonable steps to uphold the dignity of an employee who is being dismissed. In most circumstances, this requires notifying the employee of the reason that they may be dismissed and allowing them an opportunity to respond.
- Where no reason for a dismissal is provided to an employee, it may be open for the FWC to conclude that there was no valid reason for the dismissal.
- While it may be tempting to avoid confrontation through text messages or emails, meetings regarding a termination process should occur in person unless there are very good reasons to do otherwise.