But what surprised many was the commissioner's ruling on text message sackings. Raffaelli said in most situations termination of employment by telephone is not appropriate. But in this case he said he was not prepared to be too critical.
The ruling was a surprise because earlier in the year another FWA commissioner, Ian Cambridge, awarded A$9992 in compensation to a retail worker, Sedina Sokolovic, who had been sacked by text message. Cambridge said the text sacking by Modestie Fashion Australia failed to give Sokolovic an opportunity to respond, put a question mark over the employer's confidence in its decision, and also indicated a lack of courage.
The two rulings have created uncertainty over the legal status of text sackings.
"When you get two commissioners making decisions that are seemingly at odds with one another it is difficult to discern a definitive position on this, as it is often in relation to a lot of unfair dismissals," says Warwick Ryan, an employment law and workplace relations specialist at law firm SWAAB.
Despite the legal ambiguity, bosses – particularly those angered by staff actions – should not be confused. Legal experts say that sacking an employee by text message is almost always a bad idea, unless there is a threat to safety, because it does not follow due process. "If you're looking to terminate someone by text, almost by definition you can't have given them an opportunity to respond," says Ryan.
Communications experts are also warning managers of the dangers of communicating with employees using technology such as mobile phones. "Communicating that way, via text and email has manyrisks," according toSteve Lancken, mediator and principal at conflict management experts, The Trillium Group, and program director at AGSM Executive Education at the Australian School of Business. The old rules of fair and clear contact with staff still apply. The number one rule for managers when sacking or communicating with staff is simple: don't hide behind technology.
The Risks with BTW U R Fired
The recent text sacking cases are symptomatic of a broader trend of managers grappling with the legal and ethical issues of communicating with staff through new and complicated technology. There have been numerous cases of employees abusing technology, including misuse of Internet access and social media sites such as Facebook and Twitter.
"There's certainly plenty of evidence of social media causing conflict and risk for people and organisations," Lancken says. "When people communicate in a way that is less than clear or is unable to be clarified, there is grave risk of miscommunication, which often leads to dispute and conflict."
Cases involving employers, staff, and their interaction through technology are hitting the courts, throwing up complex legal issues, including the delineation of work and non-work activity. "It's becoming one of the major and most current issues in employment law," Ryan reports.
The text messaging sacking issue has broader implications for management communication with staff. Lancken says non face-to-face communication, such as text messaging, significantly increases risks. "Communicating other than face-to-face means you miss most of the information you might otherwise need or get in a conversation," he says. Non face-to-face communication is also far more open to being misinterpreted. "(The recipients) read that text message and email through their own filters," Lancken points out. "In conflict situations, a person often pulls out a piece of paper or email and they say 'that's what you said'. And the other person says: 'That's not what I meant'. They argue over what those words mean. That sort of communication creates the risk of conflict and people getting hurt."
Lancken cites a common situation where people are trying to arrange a meeting and they send six to seven text messages. "They often get confused as to where or when the meeting is to be. The quicker and more effective way is to get on the phone and set up the meeting. You can't do that by SMS, you can't do that by email."
When it comes to sacking by text message, it is hard to offer an absolutely comprehensive ethical perspective, Lancken claims. "But ask yourself the question: if someone was going to deliver you bad news would you like to get an SMS or be told face-to-face? I would like someone to tell me so I could ask questions about it; the whys and reasons."
Managers are not always going to get clear guidelines for appropriate communication from legal rulings. Divergent rulings may seem confusing. One explanation for the different rulings in the case of text sackings were the different scenarios that led to the dismissals, according to SWAAB's Ryan. He says there was a "gross failure" on the part of the employee, Brett Martin. "The commissioner found that he was aware that if he undertook the application of paint in a certain way there was a real risk of coming a cropper, yet he went ahead with it," he notes.
According to the FWA ruling, stocks of the additive silane were running low at DecoGlaze. Eventually silane was ordered but there was a delay in receiving it. Martin said he faced a tough decision: cease production on jobs that require the additive or complete the jobs without silane.
Martin had notified his production manager, Brian James, about his dilemma and his intention to paint without the additive. James did not tell him to stop. Weeks later Martin received the text messages from Hedges telling him it had cost the company A$74,000 to replace defective painted glass and that he had been dismissed.
In his decision, commissioner Rafaelli said: "While it might have been better if there had been a face-to-face meeting and this could have awaited the applicant's return from leave, it was also understandable for Mr Hedges to get to the bottom of the issue quickly to minimise potential problems with customers."
By contrast, Modestie's sacking of Sokolovic involved a much lesser breach, Ryan suggests. Sokolovic was a shop assistant at Modestie Boutique, mostly at Westfield Liverpool. According to the FWA ruling, there had been tensions between Sokolovic and Sophia Sarkis, a director of Modestie, which had been discussed at a meeting.
On December 23, 2010, Sokolovic had worked from 9am to 12pm, and towards the end of the shift felt tired and unwell. She was rostered on the next morning at 9am again. Sokolovic asked her junior colleague Ivanna Ghisso, who she was working with at the time, if she could swap shifts the next day so Sokolovic could start later at 11am. Ghisso agreed.
When Sokolovic arrived slightly late the next day, at between 11.30am and midday, she found about 25 items of clothing worth more than A$5000 had been stolen from the shop that morning, unbeknown to Ghisso. Sarkis arrived at the shop a short time later and was "understandably upset".
On Christmas day, Sarkis text messaged Sokolovic to wish her Merry Christmas and suggested they chat about Ghisso. The next day Sarkis sent Sokolovic another text, this time dismissing her for swapping the shift without letting her know and starting her shift late. In a complex ruling, which is being appealed, the commissioner found the sacking was harsh, unjust and unreasonable. But commissioner Cambridge particularly criticised Sarkis's text sacking of Sokolovic. He said it failed to give Sokolovic an opportunity to respond, offer explanations or defend herself. "It is difficult to accept that it could be reasonable or just for an employee to be dismissed without a fundamental process involving an opportunity to put a case, face-to-face, to the decision's maker," he said.
Sticking to Standards
Despite the ambiguity between commissioner Raffaelli and commissioner Cambridge's rulings, Ryan says sacking by text is inadvisable. "By and large you wouldn't do it," he says. "One (commissioner) said you can't; one said you can in certain circumstances. But if you place it in its broader context, the issue in relation to an unfair dismissal always comes back to that question: whether or not a fair process has been engaged in at that point of termination."
One of the common elements of both sackings was management's clear anger at losses incurred due to staff's actions. But Ryan says there is a standard procedure for dismissing staff, including telling them that a meeting is scheduled for the next day that will look at serious issues, and letting them know they can bring a support person.
Ryan says there is one common situation where employers are often extremely tempted to sack an employee by text. Often management will tell a staff member they are going to have a meeting to discuss serious issues; the employee then leaves the premises and goes to the doctor and gets a medical certificate. "Then they just don't turn up and keep renewing the certificate," Ryan says. "The person is off on sick leave and can't be terminated and they (management) can't hire a new person. It's tempting to fire them by text."
But, despite the temptation, managers should avoid sacking by text in that scenario, Ryan advises. "You would set out in a detailed letter explaining why you're terminating them, and give them an opportunity to return from sick leave and have a talk. It's not about text message, it's about not allowing a person to have a say."
The first thing the law generally says on the issue of dismissal is people are entitled to feedback about their performance, according to Lancken."You've got to give feedback and warnings – usually a written warning that says their performance is not satisfactory in this area; you've got to tell employees the consequences."
But managers should not be guided by law alone. "It's not only the law but common sense," Lancken adds. "If a staff member is doing something you don't like, they can't change it if they don't know. If they are not told, then they don't have an opportunity to change their behaviour."
When sacking staff, employers can get into trouble by being too emotional and angry, but also from an unwillingness to confront staff face-to-face with their decision. In the Sokolovic case, commissioner Cambridge questioned the courage of employers who sack people by text. "If the decision-maker is not prepared to deliver the message themselves, face-to-face, he or she risks creating the appearance that they do not have the courage of their convictions," Cambridge said. There are legal implications for this lack of courage. Cambridge said the basis for a sacking decision made by text is "immediately open to challenge upon the inference that the decision-maker did not have, in all good conscience, sufficient confidence in the decision to act with any conviction".
So is there ever any time sacking by text is justified? "When you're trying to protect the safety of someone else," Lancken attests. Commissioner Cambridge said that sacking without a text message might be justified if an employee "committed gross and wilful misconduct that was admitted or undeniably existent and no possible explanation or mitigation would alter the decision". Like Lancken, he said the other situation is where there was a genuine prospect of aggression or violence at a face-to-face meeting. The Sokolovic situation met neither criteria.
Ultimately, sacking by text message suggests a lack of courage on the part of managers, Lancken believes. "People hide behind emails and SMS messaging because they're afraid of the response."