Verbal notice of termination — is it legal?

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Verbal notice of termination — is it legal?

Is it legal for an employer to give verbal notice of termination to an employee, instead of putting it in writing?

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Is it legal for an employer to give verbal notice of termination to an employee, instead of putting it in writing?
 
This question was recently sent to our Ask an Expert service.
 
Q  Our company operates in the manufacturing sector. Our production manager recently terminated an employee’s employment, but failed to notify this to him in writing. Our company policy is to give notice of termination in writing. The employee has made an application to the Fair Work Commission (FWC) claiming he was unfairly dismissed. Does the company’s failure to provide written notice of termination create a problem in an unfair dismissal matter and has the employee’s employment actually been terminated?
 
A  There are two separate issues involved in this situation. The Fair Work Act (s117) requires that an employer must give an employee written notice of termination of employment. Failure to do so may result in a breach of the Act. However, it may not necessarily mean a termination of employment has not occurred. Generally, a termination of employment is considered not to take effect unless and until it is properly communicated to the other party. This could include notice being given verbally (although this would not satisfy the Fair Work Act).
 
In the context of an unfair dismissal claim, a dismissal can be effected where the notice is given verbally to the employee. This means the FWC can still hear the application as a dismissal has been effected, provided it was properly communicated to the employee. See Plaksa v Rail Corporation NSW [2007] AIRC 333.
 
Text message
 
Fair Work Australia (now the Fair Work Commission) determined in a case where a shop assistant was notified of her dismissal by text message that this was an inappropriate means of notification because it deprived the employee of an opportunity to respond, offer explanation or a defence on the issues that had been raised and this denied her natural justice. It also implied a lack of courage to face the employee. See Sokolovic v Modestie Fashion Australia Pty Ltd [2011] FWA 3063.

In another matter before Fair Work Australia, it was determined that, in most situations, telephone texting is not appropriate when terminating an employee’s employment. However, in this case, it was determined that had there been a face-to-face meeting, the outcome would have been the same. The employee had been given a chance to respond to the allegations during a telephone conversation and the employer texted the dismissal because the employee was away on leave and about to go overseas. See Martin v DecoGlaze Pty Ltd [2011] FWA 6256.
 
Verbal notice by the employee
 
There is nothing to prevent an employer from accepting the verbal resignation of an employee, however the employer should seek confirmation preferably in writing from the employee. Where verbal notice is given by the employee it may be prudent for the employer to have a witness to the resignation. This would verify an employee’s resignation but would also avoid any ‘heat of the moment’ decisions that an employee may later regret.


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