The Fair Work Commission found the dismissal of a casual bartender to be unfair despite there being a valid reason because of the manner in which the disciplinary action was communicated to her. The Fair Work Commission issued a warning to employers when using social media forums to communicate with employees.
The background
A casual employee who worked six hours per week received JobKeeper payments of up to 15 hours per week. Consequently, her employer asked that she take on additional and alternative duties as part of receiving the wage subsidy.
The employee raised concerns via Facebook Messenger regarding the proposed alternative duties, which included cleaning duties. While there was an agreement reached regarding the employee’s ongoing duties, the employee refused to attend work but continued to receive the JobKeeper payment.
The employee was issued with a warning letter for failing to commit and present for work and for failing to follow lawful and reasonable directives in respect of the performance of her duties. The warning letter was issued by email and followed correspondence between the employee and her employer using Facebook Messenger and text messages.
The employee responded to the email stating that she felt entitled to receive the full JobKeeper payment and only turn up to work as she saw fit. On the basis of her response, she was dismissed from her employment.
The decision at trial
The Fair Work Commission found that while the employer had a valid reason to dismiss the employee, it held it to be unfair because of procedural fairness failings that flowed from its acceptance of communication via Facebook messaging, text or emails in place of face-to-face meetings. Notably, it was the employee that had requested that discussions occur via email.
The Fair Work Commission considered performance management matters are best dealt with face to face and confirmed in writing after the meeting.
Implication for you
While living in a digital age with fast-growing technology means that communicating with staff via social media may prove more convenient and the preferred approach by both parties, it needs to be handled with caution.
The decision highlights that the Commission, regardless of such preference, will favour face-to-face meetings with subsequent confirmation in writing.
If in doubt, employers should always seek legal advice about ensuring they engage in the performance management process in a manner that provides the employee with procedural fairness.
Hayley Howard-Colla v AMJK Pty Ltd T/A Bloom Bar & Lounge [2020] FWC 6084 (12 November 2020)
