Employer’s texts “back to the dole que for you” and “please don’t come in tmz” did not constitute dismissal12 December 2018 | Employer's Liability
The central issue to be determined in this case was whether the Applicant's employment with the Respondent was terminated at the Respondent's initiative. The Respondent denied the Applicant's employment had been terminated and alleged the Applicant had resigned at her own accord.
- Application for an unfair remedy.
- Whether the Applicant was dismissed within the meaning of s.386.
- Termination of employment was not on the employer’s initiative.
- Constructive dismissal.
Ms Hall was a receptionist who had commenced part-time employment with Mr Michael Bordignon T/A Northern Myotherapy in about October 2016. Ms Hall made an application to the Fair Work Commission (FWC) alleging that she had been unfairly dismissed.
The central issue for determination was whether Ms Hall’s employment had in fact been terminated. Ms Hall alleged that her employment had been terminated in a telephone conversation on 8 May 2018 following a number of text messages. Ms Hall submitted that:
- Mr Bordignon stated “please don’t come in tmz” [sic] in a text message to Ms Hall. Ms Hall responded, inter alia, “so I will take that message as being sacked…”
- Subsequently, a telephone conversation took place between the parties. Ms Hall submitted that at the end of the telephone call Mr Bordignon told her “not to come back to work”.
- Mr Bordignon made remarks to the effect of “back to the dole que for you luv” when Ms Hall requested a termination letter.
Following the above exchanges Ms Hall did not return to work. She posted a note on the internal workplace dashboard stating “I will no longer be working with you at [Northern Myotherapy]”.
Mr Bordignon sent Ms Hall a text message on 9 May 2018 inviting her to come in for a coffee to discuss the situation. Ms Hall did not respond. Mr Bordignon submitted that he had assumed that this unanswered response, along with Ms Hall’s note on the internal workplace dashboard was an indication of her resignation.
The Decision at Hearing
A threshold issues in an unfair dismissal application is that there must have been a dismissal at the employer’s imitative. This often occurs as a result of clear words or conduct by an employer directed to an employee that the employee’s employment is to end or has ended. However, a termination may also occur where the conduct of the employer was the principal contributing factor which led to the termination of the employment relationship.
The FWC was not persuaded that Mr Bordignon dismissed Ms Hall during the telephone conversation on 8 May 2018 or at any time thereafter stating that the fact that Ms Hall believed she was dismissed was not a relevant factor. The FWC found that it was Ms Hall who first raised the issue of dismissal through the text message exchanges, which demonstrated that Ms Hall had in her mind, well before the telephone conversation, that her employment relationship might end.
The FWC acknowledged that however childlike Mr Bordignon’s comments appear, they did not have the effect of retrospectively transforming that which was not at the time a termination of employment on the employer’s initiative to one that was so. If there was a reference to termination, the FWC described it “at best, equivocal.” The fact that Ms Hall acted on the erroneous belief that had been dismissed, does not result in the termination of the employment having occurred on the employer’s initiative.
As the FWC determined that had not been dismissed, there can be no unfair dismissal. The application was dismissed.
Implications for you
It is best practice to deal with employment matters face to face, or by letter, because meaning can be lost in translation when corresponding by text, or even email. Importantly, however, where an employee acts on the erroneous belief that their employment has been terminated this will not be taken to be “on the employer’s initiative” for the purpose of the Act.