The Fair Work Commission has delivered an emphatic warning to employers who organise rosters on digital platforms, finding that the removal of an employee from a WhatsApp group and the withholding of their shifts can constitute dismissal.
Introduction
As digital media has continued to evolve, employers have integrated social media platforms into their rostering systems. Whether it be through Facebook messenger, WhatsApp or other mass communication platforms, employers are increasingly relying on these tools to manage employee work availability, hours and rostering. As convenient as this may be, such platforms have posed contemporary challenges for employers about how to appropriately manage these systems and ensure compliance with their statutory obligations.
The Commission's recent decision in Alex Zucco v Mariana Chedid T/A Brulee Patisserie [2022] FWC 3272 concerned an employer's decision to block an employee from a WhatsApp group where rostered shifts were posted and which resulted in the employee being 'dismissed'.
Facts
Ms Zucco, the applicant, was casually employed as a barista at Brulee Patisserie. Following a series of absences from work after attempting to take her own life, the applicant's café manager deemed that the applicant was in no state to work and subsequently removed her from all work rosters for a two-week period. During this time, several attempts were made by the employer to get in contact with the applicant to discuss her future work arrangements. The applicant was silent as to whether she intended to return to the café. Consequently, on 2 July 2022, the manager terminated the applicant's employment by way of removing her from the team WhatsApp group.
A week later, the applicant applied to the FWC alleging that her dismissal contravened the general protections in Part 3-1 of the Fair Work Act 2009 ( Cth). The employer objected to this application on the grounds that the applicant was not 'dismissed', but rather her employment ceased by way of resignation.
Termination v resignation
Unequivocally, the most contentious issue in this case was whether the applicant's silence prior to her termination constituted an implicit resignation on her behalf, as opposed to a dismissal on the employer's initiative. Under section 386(1)(a) of the Act, a dismissal will materialise in circumstances where the 'action of the employer is the principal contributing factor leading to the employment termination'. In the present case, the Commission was satisfied that it was the manager's conscious decision to remove the applicant from a group where rostered shifts were assigned that lead to the discontinuation of her shifts and subsequent dismissal. Given the WhatsApp group was the sole medium for communicating rosters to employees, without access to such group the applicant could not have been notified of her shifts, nor expected to attend work.
The employer argued that the manger's act was merely a response to the employee's resignation following her repeated failure to attend work. Notwithstanding this fact, the Commission considered that it was not incumbent on the applicant to contact the employer for shifts. Rather, it was the responsibility of the manager to make enquiries as to the status of the applicant's employment prior to blocking her from the WhatsApp group. The manager's failure to do this amounted to a termination of employment on the employer's initiative.
Motive is irrelevant
Employers should be aware that the motive of the employer was not a relevant consideration of the Commission when finding that the applicant had been dismissed.
Conclusion
Employers should remember that there is no substitute for good communication. Invariably, there will always be cases where it appears that the employee and employer relationship is untenable. In such circumstances, employers still have a responsibility to contact their employees and enquire as to their employment status. Haste or inadvertence for the consequences of a decision that impacts an employee's interest could subject employers to claims of unfair dismissal or adverse action.
Cooper Grace Ward is a leading Australian law firm based in Brisbane.
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