Even if you don’t verbalise a termination to an employee, your actions can still land you in hot water.

The convenience of digital technology has seen more employers using social media applications as a helpful communication and rostering tool. While this enables employers to streamline some business functions, it can also expose them to new legal challenges.

A recent Fair Work Commission decision found that removing an employee from a WhatsApp group dedicated to allocating shifts constituted a dismissal at the employer’s initiative. This is the second decision of this type in recent months. In both cases, Deputy President Amber Millhouse dismissed a jurisdictional objection by the employer claiming that no dismissal had occurred. 

So should you think twice about removing an employee from a group chat?

Underpayment claims prior to dismissal

A high school student working as a casual employee at a kebab shop filed a general protections application following her removal from the WhatsApp group. The employee routinely worked around her schooling commitments, at times requesting periods off but remaining in the chat group. 

Before being removed, the employee had raised underpayment concerns with her employer. After some back-and-forth correspondence and a meeting, the employee sent a final message requesting that her working hours be recalculated and restating her underpayment concerns. Later that day, she found herself no longer in the WhatsApp group.

The employer contended that it routinely adds and removes employees from the group, including when employees make themselves unavailable to perform work for a short time. This contradicted evidence given by the employee that, in her experience, employees were never removed from the WhatsApp group unless they were “fired”. 

“Any conduct that makes it practically impossible for employees to complete their work could be construed by the FWC as a dismissal.”

The employer also claimed it removed the worker from the group “so as to not distract [her] with the group messages while she studied”, but the FWC found insufficient evidence to support this statement.

Based on the evidence, Deputy President Millhouse found the WhatsApp group to be the primary means for allocating shifts. So it followed that being removed from the group meant the employee would not be assigned shifts in the future.

While it was noted that the employer did not explicitly tell the employee her employment had ceased, and said she was welcome to return to work, Millhouse found that removing the student from the group was the principal contributing factor which ended the employment relationship.

That is, the FWC formed the view that the absence of any explicit communication of dismissal did not nullify the conduct in removing the employee from the group.

Satisfied that the employee was dismissed within the definition of section 386 of the Fair Work Act 2009, Millhouse dismissed the jurisdictional objection and referred the general protections application for conciliation.

Legal takeaways for HR

Section 386 provides that a person is dismissed when their employment is terminated on the employer’s initiative.

Millhouse’s decision confirms that a dismissal can occur where the action of the employer is the principal contributing factor leading to the employment termination, even if there is no explicit communication of a decision to dismiss. 

Employers and HR professionals should always be mindful that any conduct that makes it practically impossible for employees to complete their work could be construed by the FWC as a dismissal.

A version of this article was originally published in the June 2023 edition of HRM Magazine.

Trent Hancock is a Principal at Jewell Hancock Lawyers.

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