Employment: Sacking By Text Won't Pass Good-faith... | Stuff.co.nz

OPINION: Common sense suggests that text messaging should not be used for serious communications. However, it appears that our cultural obsession with texting has led to many employers and employees trying to conduct their employment relationships by text.

There have been several recent cases in the Employment Relations Authority involving employment relationships that have ended or deteriorated as a result of abrupt or ambiguous text message exchanges.

The text message would appear to offer a quick, easy and painless means of severing the employment relationship, removing the need for the employer to have face-to-face contact with the employee. It can also be used to communicate information including anything from simple instructions to unhappy news about their future employment.

You would be surprised at how often employers try to dismiss employees by text message. The authority has repeatedly made it clear to employers that dismissals by text are unlikely to be something that a fair and reasonable employer, acting in good faith, can justify.

Moreover, the compensation awards for the hurt and humiliation associated with these types of dismissals are significant and can be very damaging to small businesses that may be more likely to communicate by text message.

Last year, former immigration minister Tuariki Delamere, the director of TDA Immigration and Student Services Ltd, was required to pay $4000 compensation to an employee for dismissing him for poor performance via the "impersonal" medium of the text message.

In a case last month, a Nelson lunch outlet, The Salad Bowl, dismissed an employee by text. The employee had only worked for the business for five hours. The employer found a shortfall of $52.35 in the till at the end of the day and concluded that the employee must have taken it.

The employer sent the employee a text that night saying, "No need to come into Salad Bowl tomorrow. We'll be in touch. Thx, Randi". The following day there was a text exchange during which the employee was told "there is no job" and was accused of taking the money, which she denied. She was awarded $5000 compensation for the hurt and humiliation of being accused of theft and the traumatising effect of her dismissal.

Similarly, the authority recently dealt with the case of a dairy farm worker who was dismissed by text message when he failed to return to work after his lunch break. He had fallen asleep and eventually texted his employer later that afternoon to explain what had happened. His employer appeared at his door unannounced the next day with a dismissal letter following on from the text sent the previous day.

The authority found that the dismissal was carried out in a procedurally unjustifiable and unfair manner, awarding $500 compensation.

However, it is not just employers who need to take care with text message communications. When both the employee and employer rely heavily on text messaging to communicate their intentions during an employment relationship, there is a real risk of a breakdown in communication, despite best intentions.

In a decision involving a small Waikato concrete laying business, A1 Bobcats, an employer and employee had a heated text exchange about a job that the employer alleged the employee had "f****d up".

After three days' absence from the workplace, the employee indicated that he wanted to keep his job: "Hey shaun thankr for the muny didn't think I had work that i gues u not gana saz u wrong bot that job crank. I dindnt want to own it, i still keen towrk. Up to u."

The employer believed the employee had already resigned because of the request (also by text) for his wages to be paid out. The employee brought a personal grievance for unjustified dismissal. The authority found that the employee had been unjustifiably dismissed, but that both parties were equally at fault for the breakdown in the relationship and failing to be responsive and communicative.

The authority commented that "Mr Griffiths and Mr Dromgool relied far too much on obscure text messages, a matter that appears far too often in cases before the authority these days".

These cases demonstrate that employers and employees are well advised to have face-to-face (or at least telephone) discussions where critical matters are in play - such as whether there is still an employment relationship.

Despite its convenience and ease of use, the blunt instrument of the text message is unhelpful when employment law requires the parties to an employment relationship to be responsive and communicative. To be clear, this does not mean simply sending more texts.

The reality is that simply sending a text in an attempt to end an employment relationship is inconsistent with the obligation of good faith.

At a minimum this requires an employer to investigate allegations, discuss them with the employee, allow time for a response and consider it genuinely before taking action. Good luck fitting all of that into 160 characters.

Susan Hornsby-Geluk is a partner at Dundas Street Employment Lawyers. susan@dundasstreet.co.nz

- ? Fairfax NZ News

Source: http://www.stuff.co.nz/business/opinion-analysis/8495550/Sacking-by-text-won-t-pass-good-faith-test

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