With ‘working from anywhere’ still a major part of many businesses operations, even as some of the COVID related restrictions loosen, a recent case in the Fair Work Commission (FWC) provides a timely reminder to employers and employees about how and with what they communicate about work related matters.
As part of the Human Resource strategy and related policies, procedures and training, managers and employees should be clear on what the right channels for work related communications are and why. HBA Consulting is able to provide advice and assistance with reviewing your HR Strategy and related policies and procedures – whether you are located in Brisbane, Sydney Melbourne, Canberra or Perth – or most places in between.
In early December this year, the FWC issued a word of caution to employers when it comes to communicating with staff via the various social media platforms (e.g. Twitter, Facebook, etc.). This warning was issued as part of a case where a casual employee had an unfair dismissal ruled in her favour as communication with her employer was carried out via the popular social media outlet - Facebook.
Commissioner Leyla Yilmaz found the Geelong night club "Bloom" had valid grounds to sack the bartender but held it to be unfair due to procedural fairness failings that stemmed from "acceptance of communication via Facebook messaging, text or emails in the place of face to face meetings".
"While employees like [the bartender] also favoured the same form of communication, the approach failed both parties," she said.
The commissioner further emphasised that "performance management matters are best dealt with face to face and confirmed in writing after the face to face meeting".
The bartender, who was employed by the Geelong Venue, was originally working a maximum of 6 hours a week, with these often arranged around her university timetable. However, when the possibility of receiving JobKeeper was offered to the staff at Bloom, she agreed to increase her hours to 15 hours a week as well as take on various other duties that would need to be carried out with the increase in her hours. This request was one that Bloom made of ALL its employees who received the wage subsidy.
The young bartender carried out her duties for Bloom for a period of three months, before she then began to raise concerns with her manager via the Facebook Messenger App. One of her main concerns was that "she felt uncomfortable performing certain tasks", with a key reason for this being that she had no formal training in aspects of the tasks required of her, as well as limited PPE being provided to her so that she could carry out these duties.
The manager of Bloom said she challenged her hours and asked why she was required to perform cleaning duties which she claimed "fell outside of her usual job description", a statement the manager denied.
Following a Facebook message exchange, it took both parties more than a fortnight to come to an agreement – with the employee agreeing to carry out various duties that would need to be completed during her 6-hour shift. Additionally, within this period of negotiation, the employee did not work a shift for Bloom, however, she continued to receive the JobKeeper payment.
It was not until one month after reaching that agreement that the bartender finally met with the management team of Bloom In this final meeting, the employee was issued with a "warning letter", outlining that she displayed "disrespectful behaviour and insubordination". This formal written warning was later described, by Commissioner Yilmaz, as "poorly drafted" and "confusing".
After receiving the letter, the bartender challenged Bloom as to why she had not received a verbal warning, prior to receiving the written warning. Shortly after pursuing this line of questioning, the bartender was dismissed.
The bartender emailed her manager to ask why she had been dismissed so quickly and he offered only to discuss matters over the phone. The bartender refused this offer and instead insisted that they communicate via email.
Commissioner Yilmaz found Bloom entitled to terminate the bartender's employment because of her refusal of reasonable and lawful directions and her poor attendance record but ruled she had been "unfairly dismissed due to a lack of procedural fairness".
She then went on to say that Bloom issued the warning letter to force change in the bartender's conduct and that when this failed "it immediately terminated her employment based on an assessment of her response to it instead of giving her an opportunity to address her conduct after initiating a disciplinary procedure".
The Commissioner continued that " [the bartender's] preference was not to work, but simply receive the full JobKeeper payment, as she considered it her entitlement".
She noted "this matter in my opinion is indicative of the difficulties that often confront businesses without HR resources that attempt to follow a perceived fair procedure but grow weary or impatient".
Commissioner Yilmaz added that the nightclub "also would have benefitted from proper advice in relation to its process and its drafting of warning and termination letters".
The bartender won compensation of about $170, equivalent to one week's pay, after a deduction for the conduct that led to her dismissal.
St SPENCE ACT 2615
PH : 02 6247 4490
Level 32, 101 Miller St,
North Sydney NSW
PH: 02 8019 7164
Level 2 Riverside Quay,
1 Southbank Boulevard,
PH: 03 9982 4544
Level 19, 10 Eagle Street,
PH: 07 3303 0807