AREEA senior workplace policy adviser Lisa Matthews summarises a FWC decision whereby a woman won reinstatement after being sacked by SMS after raising concerns on the timeliness of her pay.

The Facts

A pregnant woman sacked by SMS after complaining to her boss that she wasn’t paid on time has won reinstatement.

In December 2012, the woman, a part-time sales assistant at one of five retail stores trading as “Mad About Price”, had sent a text to her boss saying she was trying to pay her rent but there wasn’t enough money in her account due to a late wage payment. Her boss took issue with the tone of her SMS and, following an exchange of texts between the two, said he no longer had a job for her.

The reason for dismissal cited on her letter of termination, which the woman maintained she had not seen until her claim was conciliated at the FWC, was for using “bad language”.

The Decision

DP Gostencnik in his July 26 decision said the original SMS sent by the employee was understandable given her frustrations about not being paid.

In the decision, DP Gostencnik said:

“I do not regard the SMS sent by the applicant to the respondent as particularly rude. Certainly the tone is reflective of a person who is anxious to resolve the wages issue that she raised and to pay her rent …Moreover it is clear from the SMS exchange that it is the respondent who engaged in inappropriate language and tone …”

He went on to say:

“I do not accept that the respondent was entitled to send the messages that he did to the applicant in response to her understandably anxious and frustrated query about the whereabouts of wages. Furthermore, it is unacceptable for the respondent to make threats about the applicant’s employment.”

A person was entitled to raise legitimate concerns about pay with their employer without being subject to threats of dismissal for doing so, he confirmed.

In ordering reinstatement, Deputy President Val Gostencnik said this would also restore the woman’s right to return to her job following a period of parental leave, make her eligible for the government’s national paid parental leave scheme and give her the right to request flexible working arrangements on her return.

Implications for employers

In this case, the DP found numerous procedural deficiencies leading up to the woman’s dismissal, including that she was not given a reason for dismissal before or at the time of her termination; she was not given an opportunity to respond to the reason for her dismissal; and while she had received a previous warning about unacceptable conduct, this had nothing to do with the events surrounding her dismissal.

While the small size of the business might excuse some procedural flaws on the part of the owner, “it does not excuse a complete absence of fairness and his capricious and spiteful reason for effecting the dismissal”, the DP said. He noted in passing that the conduct engaged in would also likely provide grounds for a general protections claim.

Case: Simpson v Mohammed Shahid Akram t/a Mad About Price [2013] FWC 5110, 26 July 2013