“Whether an employer may terminate the employment of an employee by text message would generally depend on the terms of the employment contract,” he said.
Gaw pointed to Section 10(5) of the Employment Act (EA) which states that a notice to terminate “shall be written”.
“This Section is unlikely to preclude employers from giving notice to terminate by text message,” he said. “This is because the Electronic Transactions Act allows electronic records – like text messages – to qualify as ‘writing’.”
As such, a notice of termination sent via text message could be an effective form of termination, he added. The exception is if the employment contract expressly specifies a particular form of notice, ie by registered mail.
“Employers must understand what the employment contract requires them to do to give valid notice to terminate.”
If an employer wishes to terminate via text message and this is permitted under the employment contract, it is important to include all relevant details within the text message, Gaw advised.
“As a practical measure, the employer should also require the employee to acknowledge receipt. It is also recommended that the employer still follow up with a formal letter of termination.”
In the event that notice by text message is deemed invalid, the termination may be regarded to be ineffective and the employment contract will continue, he said.
“For example, if the employer were to try to immediately dismiss an employee by an invalid text message, arguably the employee has not been terminated.”
“On the other hand, the employer may be said to have breached the employment contract by wrongfully terminating the employee.”
If the termination notice is invalid and the employer treats the employment contract as terminated, the employee may then try to claim for damages by arguing that they have been constructively dismissed by the employer, Gaw added.
An employee may be able to sue the employer in court for damages for breach of contract, he said. In this case, they may be entitled to the amount they would have earned under contract. This would be for the period until the employer could have lawfully terminated the contract.
Employers who breach contract in this way also run the risk of the employee lodging a complaint with the Ministry of Manpower
– if they are covered by the EA – or seeking tripartite mediation – if they are a professional, manager or executive earning a basic salary of up to S$4,500 per month.
In the future, the proposed Employment Claims Tribunal may also be open for employee disputes of this nature, he added.
“Given the possible challenges and uncertainty, employers should weigh up any benefits of a text message termination notice against the potential time and effort which would be spent dealing with such challenges and uncertainty,” Gaw said.
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When dismissing an employee, are you legally permitted to send the termination notice via text message? We talked to Benjamin Gaw, director of the employment department at Drew & Napier, to find out.