A recent case before the full bench of the Fair Work Commission has confirmed that providing notice is about providing the information, not about ensuring the employee understood the information provided. This contentious case has far reaching implications, particularly for shift change notices for transport staff, and is the focus of this weeks ACAPMA Case Review.
This case involved the sending of a text message to a train driver notifying him of a change to his start date. The business argued that the text message, provided more than 12 hours before the new shift start time constituted notice, while the union argued that there was a requirement for the business to ensure that the notice of shift change time was received and understood by the employee, which a text message did not allow.
In considering the case the Full Bench noted that a text message or a voicemail is an acceptable form of notice “In short, the giving of notice ordinarily requires the delivery and receipt of a communication about a specified matter but does not require the recipient to know of or understand the content of the communication”.
This clear acceptance of the deliver information construction of the term notice, was further expanded when the Full Bench added that absent a specific method of notice being stipulated in the employment instrument there is no ‘correct’ method of notice; “does not prescribe any particular method for giving of notice…may be effected by any common contemporary method of communication which can reasonably be expected to be accessible to the employee”.
In handing down the decision the Full Bench put it simply, requiring a response to the notice from the employee is legally an “untenable position since it would leave it in the hands of the employee as to whether [the business] had discharged its notice obligation” and that such a perverse situation could see an employee deliberately or vexatiously cause the business to breach its legal obligations of notice “simply by refusing to ready and text messages from [the business]”.
Learnings for all businesses
While the union strenuously objects with findings the underlying legal principles are very clear. Where there is an obligation on a business the business must be able to be meet that obligation without the participation of the employee, and visa versa.
“If there is an obligation in law or in the employment instrument that the employer must provide the employee with an widget, that is in the control of the business. The business can source the widget, collect the address of the employee and arrange for delivery of the widget to the employee. At that point the business has met its obligations. It would be impossible for the business to meet the ‘Widget Provision’ requirement if the employee was required to open, understand or place the widget in a particular place in their home” explains ACAPMAs Elisha Radwanowski.
“This Widget Provision example is hyperbole but it does highlight that one party, the business, cannot be held to ransom when it comes to compliance, for the actions or otherwise of a different party” continued Elisha.
“Practically where a business is providing any notice, including change of shift, calling a meeting, changes to policies etc, the business should take reasonable measures to ensure that the employee has received and understood the notice, it is in the businesses interest to have employees that are aware and engaged, but a business will not be in breach if an employee chooses not to look at notice provided”
Here to Help
HR Highlights are things to consider, implement and watch out for in your business. They are provided as general information for you to consider and do not constitute advice. You should seek further advice on your situation by contacting your legal advisor. ACAPMA members can access resources and receive advice, guidance and support from the ACAPMA employment professionals via firstname.lastname@example.org , it is free for members. ACAPMA Membership delivers this and more benefits, see; https://acapma.com.au/membership/ for more information.
Elisha Radwanowski BCom(HRM&IR)