With the increase in electronic communication, employers are questioning how they can legally communicate important employment notices, such as notice of termination, to an employee.

So, is a notice of termination via email or text message considered “written notice” for the Fair Work Act?

In 2012 the Federal Magistrates Court determined that a text message advising an employee of their dismissal was, in fact, a form of writing that complies with the notice requirement under the Fair Work Act. The Act (s117) requires notice of termination by an employer to an employee to be in writing. See Guirguis v Ten Twelve Pty Ltd and Anor [2012] FMCA 307.

Before this decision, (then) Fair Work Australia handed down several decisions that considered whether giving notice via texting or email was inappropriate. While the Federal Magistrate's decision post-dates these decisions and only considered if texting notice complied with the Fair Work Act, the Fair Work Commission may consider the method of notification of dismissal when determining its fairness or otherwise, in terms of procedural fairness.

In one matter, where a shop assistant was dismissed by text message, it was viewed as an inappropriate means for notifying the employee of their dismissal because it deprived the employee of an opportunity to respond or offer an explanation or defence on the issues raised. This denied her natural justice. It also implied a lack of courage to face the employee. See Sokolovic v Modestie Fashion Australia Pty Ltd [2011] FWA 3063.

In another matter, it was determined that, in most situations, texting is not appropriate when terminating a worker's employment. However, in this case, it was determined that had there been a face-to-face meeting, the outcome would have been the same. The employee had been given a chance to respond to the allegations during a telephone conversation. The employer texted the dismissal because the employee was away on leave and about to go overseas. See Martin v DecoGlaze Pty Ltd [2011] FWA 6256. 

Proper notice of termination

As mentioned above, the Fair Work Act requires an employer to give an employee notice of termination in writing. Failure to do so may breach the Act but may not necessarily mean a termination of employment has not been effected.

Generally, termination of employment is considered not to take effect unless and until it is properly communicated to the other party. This could include notice being given verbally (although this would not satisfy the requirements under the Fair Work Act, where the employer gives verbal notice). The Acts Interpretation Act 1901 [Cth] (ss.28A and 29) provides how notice may be given.

In particular, the notice may be given to an employee by:

  • delivering it personally
  • leaving it at the employee’s last known address, or
  • sending it by pre-paid post to the employee’s last known address.

In an employee’s resignation, an employer should request an employee’s resignation in writing to avoid any misunderstanding. However, this may be not easy to obtain from an employee in certain circumstances.

There is nothing to prevent an employer from accepting the verbal resignation of an employee, including over the telephone. However, the employer should seek confirmation, preferably in writing from the employee or, in the latter case, to verify the caller on the telephone by asking particular identification details known only to the employee.

Where an employee at the workplace gives verbal notice, it may be prudent for an employer to witness the resignation. The employer’s request for an employee’s resignation in writing is to avoid any ‘heat of the moment decisions that an employee may later regret. See Commonwealth of Australia – re P.T. Wilson v Australian Tax Office, PR901127 [2001] AIRC 163, Burns v Aboriginal Legal Service of Western Australia (Inc) AIRC Print T3496.

The bottom line: Although texting notice of termination by an employer to an employee complies with the Fair Work Act, it may be taken into account by the Fair Work Commission in determining whether an employee was accorded procedural fairness in the context of an unfair dismissal claim.