Removing an employee from a WhatsApp group was a dismissal

Removing an employee from a WhatsApp group was a dismissal

Technology has shaped the way we live and work, and some employers even use social media platforms as a rostering and communication tool. While this has benefits for both employers and employees, it can also expose businesses to legal challenges.

Student working in a kebab shop was removed from a WhatsApp Group after raising underpayment concerns

In a recent decision, the Fair Work Commission (FWC) rejected the employer’s claim that a dismissal had not occurred. The case involved an employee being removed from a WhatsApp group dedicated to allocating shifts. The FWC held that the act of removing the employee from the WhatsApp group chat constituted a dismissal at the employer’s initiative.

As it was determined that the employee had been dismissed, it cleared the way for the employee to pursue a general protections claim against their former employer.

A high school student working as a casual employee in a kebab shop filed a general protections claim after she was removed from the WhatsApp group. The employee often worked around her study commitments, at times requesting time off but remaining in the group chat.

The employee had raised underpayment concerns with her employer and requested that her working hours be recalculated. Later the same day, she found herself no longer in the WhatsApp group. The employee made a general protections claim against the employer on the basis that she was dismissed after raising her underpayment concerns.

The employer submitted that it routinely adds and removes employees from the group including when employees are unavailable to work for a short period. The employee gave contradictory evidence saying that other employees were never removed from the WhatsApp group unless they were dismissed.

The employer further claimed that they removed the employee from the group so as not to distract her while she was studying, but the FWC found insufficient evidence to support this statement.

The FWC found that the WhatsApp group was the primary means for allocating shifts, and that being removed from the group chat meant that the employee would not be assigned shifts in the future. The act of removing the student from the group chat was the principal contributing factor which ended the employment relationship.

Fareshta Karimi v Aker Group Pty Ltd [2023] FWC 717 (24 March 2023)

Key takeaways for employers

Section 386 of the Fair Work Act 2009 (Cth) provides that a person is dismissed when their employment is terminated at the employer’s initiative.

This case demonstrates that a dismissal can occur where the action of the employer is the principal contributing factor leading to the termination of employment, even if there is nothing in writing or verbally stating that “your employment is ending.”

Employers should be cautious about how they communicate with employees via social media platforms, including using it as a rostering tool, as removing employees from a group chat could amount to a dismissal and open the business up to risks.

Help for businesses

The Fair Work Ombudsman have resources to help employers including tools and information in their Small Business Showcase.

There is also an Employer Advisory Service to help small business employers to meet their obligations under the FW Act.