Terminating an employee’s employment by email or SMS, is not unlawful, but it may be considered procedurally unfair and provide an employee grounds to challenge the dismissal.

The Fair Work Commission has considered this issue. Unless there is a legitimate reason, for advising of dismissal by email or SMS – such as a genuine risk of physical violence or some geographical difficulty preventing face to face communication – an employer should not notify the employee “face to face” of his/her dismissal. The Commission also stated that it would only be in very rare circumstances that dismissal by text or email would be appropriate.

Notification of dismissal by electronic or digital means, is a factor that the Fair Work Commission may take into consideration in determining whether a dismissal is harsh, unjust or unreasonable.

The Legislation:

The Fair Work Act 2009 (Cth)

Section 285 of the Fair Work Act 2009 (Cth) (“FWA”) sets out that a dismissal will be considered unfair if:

  • The person has been dismissed; and
  • The dismissal was harsh, unjust or unreasonable; and
  • The dismissal was not consistent with the Small Business Fair Dismissal Code; and
  • The dismissal was not a case of genuine redundancy.

Section 387 of the FWA provides several factors which the Fair Work Commission (“FWC”) may consider in determining whether a dismissal was harsh, unjust or unreasonable. These factors include:

  • Whether there was a valid reason for the dismissal;
  • Whether the person was notified of that reason;
  • Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
  • Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relation to the dismissal;
  • If the dismissal related to unsatisfactory performance by the person, whether the person had been warned about that satisfactory performance before the dismissal
  • The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal;
  • The degree to which the absence of dedicated human resources or expertise in the enterprise would be likely to impact on the procedures followed in effect the dismissal; and
  • Any other matter that the FWC considers relevant.

In our personal experience, we have been involved in a significant number of matters before the FWC where there may be a completely valid and justifiable reason for the dismissal, but the employer fails to undertake a proper termination process, resulting in the dismissal being found to be harsh, unjust or unreasonable. To that end, we note that there can be some real risk for employers when terminating an employee other than by a face-to-face meeting and we have undeniably noticed a steady increase in cases before the FWC where unfair dismissal claims have been upheld because of some procedural defect in the termination process.

Judgments in matters of unfair dismissal by electronic means

Knutson v Chesson Pty Ltd t/a Pay Per Click [2018] FWC 2080

Here the court, at paragraph 47, found that notification of dismissal should be conveyed face to face unless there is some genuine apprehension of physical violence or geographical impediment. Furthermore, Commissioner Cambridge stated, “Even in circumstances where email or electronic communications are ordinarily used, the advice of termination of employment is a matter of such significance that basic human dignity requires that dismissal be conveyed personally with arrangements for the presence of a support person and documentary confirmation”.

It is noteworthy that Commissioner Cambridge in this decision found the dismissal of an employee by email to be unnecessarily callous and the employer in this matter carried out the dismissal with significant procedural flaws. As a result, Commissioner Cambridge found that the dismissal in this specific matter to be unfair and awarded the employee $22,880 in compensation to cover 17 weeks of lost pay between her dismissal and the commencement of her new employment.

Anita Cachia v Scobel Pty Ltd ATF the S & I Trust t/a Emerse Skin & Laser [2018] FWC 2648

Here, there was specific consideration of an unfair dismissal application where the employee was terminated for serious misconduct by telephone. The employer stated that the worker was dismissed, for her ongoing inappropriate behaviour and poor treatment, towards the company’s manager and other staff. There were a number of complaints to the employer by other staff, regarding her behaviour towards them in the workplace. The employer conducted an investigation into the complaints, speaking to the complainants and also to the worker, giving her an opportunity to respond to the complaints. The employer scheduled a meeting with the worker. Following the meeting, the employer terminated Ms Cachia’s employment. The basis for the termination of employment, was gross misconduct. The worker was paid all outstanding entitlements, on termination of her employment.

The worker sought relief in court for unfair dismissal. Deputy President Sams found Ms Cachia’s conduct did constitute serious misconduct. He also stated that she posed a threat to the health and safety of other employees, leaving the employer with no other choice but to terminate her employment and that she was not denied procedural fairness. However, His Honour did criticise the manner taken by the employer to inform Ms Cachia of her dismissal by phone. Specifically, Deputy President Sams stated, “I do not consider that informing an employee of their dismissal by phone, text or email, to be an appropriate means of conveying a decision which has such serious ramifications for an employee”. Deputy President Sams accepted that the Small Business Fair Dismissal Code, from whom the employer sought advice, did not include a requirement to convey the decision to terminate an employee in person. The dismissal was upheld.

Wallace v AFS Security 24/7 Pty Ltd [2019] FWC 4292 (28 June 2019)

Mr Wallace, a casual security guard. He was dismissed by text message after working for AFS Security 24 7 Pty Ltd, for a period of 2.5 days per week for approximately 2 years. . The employer provided no reason to Mr Wallace for his termination and in defence of its actions submitted that text message was a “normal method of communication” for the company.

Commissioner Cambridge held that notification of dismissal to a worker should occur face to face, unless there is a “genuine apprehension of physical violence or geographical impediment”. The Commissioner later criticised the employer’s conduct as “plainly unjust, unreasonable, harsh, and, unconscionably undignified” and a “disregard for basic human dignity”.

Mr. Wallace was awarded over $12,000 in compensation.

In summary, the Fair Work Commission concluded that:

  • there was no valid reason for the dismissal;
  • the worker was denied “procedural fairness” as the employer did not give the employee an opportunity to respond to the contrary to the requirements reasons for his dismissal; and
  • he was notified of the dismissal by text message and not provided with written confirmation as required by the legislation.

Van-Son Thai v Email Ventilation Pty Ltd [2019] FWC 4116 (27 June 2019)

Here, the worker had been employed at the business for a period of 12 years, as a sheet metal worker. Mr Thai who was dismissed by text message after working for his employer for 12 years, following his refusal to work the same hours with a 22% pay cut. Upon refusing the lower rate of pay and leaving the workplace, Mr Thai received the following text message: “Effective immediately I give notice of termination of your employment, please note you are required to work your notice period… [you] are entitled to 4 to 5 weeks employment termination notice period”. Mr Thai served his notice period and filed an unfair dismissal application shortly after.

Deputy President Sams labelled the dismissal by text message “disgraceful and grossly unfair” and went on to accuse his employer of having no “sense of common decency”, and of dismissing Mr Thai “in [a] hopeless manner particularly given the applicant’s value to the business and his long period of service.”

The worker filed an unfair dismissal claim. The Fair Work Commission determined that:

  • there was no valid reason for the dismissal
  • there was complete lack of natural justice or procedural fairness; and
  • the manner in which the dismissal was carried out was “disgraceful and grossly unfair”.

The worker was awarded compensation.

These decisions demonstrate that the method of notification of a dismissal may be a factor that the Fair Work Commission will take into account when deciding whether a dismissal was harsh, unjust and unreasonable.


Employers should avoid terminating a worker’s job by telephone, email or SMS, unless there is a real risk of physical violence or some geographical hindrance to having a ‘face to face’ meeting. The decision to terminate someone’s employment after the meeting should be followed up in writing.

The employer should ensure that any process regarding the termination of employment or performance management should be procedurally fair and provide the employee with an opportunity to respond to, and/or raise issues or concerns. Unless it is unsafe to do so, or it is entirely impracticable, there is no excuse for an employer to convey a decision regarding an employees’ employment via electronic means. If you need advice about workplace/industrial issues, contact your business organisation – such as Business SA if you are a member. Fair Work Australia may also be able to assist and is a free service. If you cannot be assisted, contact MATTHEWS LAWYERS for legal advice.


You have the right to ask questions about your employment with your employer and receive a response. You also have the right to be treated fairly at work in accordance with workplace laws. If you believe you have been unfairly dismissed, contact Fair Work Australia or the South Australian Employee Ombudsman for free legal advice. If these organisations cannot assist you, MATTHEWS LAWYERS for legal advice.

Disclaimer: The information here is of a general nature only and not a substitute for legal advice.