Thinking about following the lead of a Florida employer and firing your team via text? It could lead to a lawsuit.
It’s a national holiday, but one group of Americans weren’t celebrating – the entire workforce of an Orlando, Florida, restaurant who were fired by text.
Barducci's Italian Bistro owner Gregory Kennedy sent all his employees a group text message, telling them: "I unfortunately need to inform you that I have been forced to close Barducci's effective immediately." The reason for the closure was not given.
“I think it's despicable. I think it's cowardice,” Jodi Jackson, a cook who worked at the restaurant for more than two years, told a local TV station. “I think we all deserve our compensation for money he's already made from us.”
Canadian companies hoping to do the same need to reconsider – many provinces require written notice delivered to the individual.
Under the Ontario Employment Standards Act, a notice of termination has to be in writing and it has to be either personally delivered to employees, or delivered by registered mail, Lisa Goodfellow, a labour and employment lawyer with Miller Thomson's Toronto office, said.
“You want to have proof that it was done and that it was delivered and the employee understands,” Goodfellow said. “We always recommend that a termination be done by a meeting in person if possible, but sometimes that’s not possible, for example when an employee refuses to come in for a meeting or if they’re absent without leave.”
While she had not seen the text message terminations yet, employers have attempted to use email, which also would not qualify under the ESA. A termination of employment was always going to be a difficult time for the employee so an employer should be as sensitive as possible, which usually meant informing them in person.
Firing by text message could also potentially contribute to a “bad faith” complaint, where an employee could claim for aggravated damages.
“It’s the kind of thing, where if a court sees behaviour they consider unnecessarily harsh they may want to punish an employer,” Goodfellow said.
In a situation where a restaurant, plant or other workplace is closing and all staff are being let go, a group announcement could be appropriate, but employees would still require individual letters. Goodfellow suggested a text message may be appropriate if a site was being closed due to bankruptcy, which would be out of an employer’s control. In that case, a call or text to warn employees was preferable to the workers showing up to a locked store.
As for the explanation from the owner? Kennedy refused to answer or return calls from the TV station, though he did eventually reply to the station...in a text message, of course.
"Unfortunately businesses are forced to close across Orlando every day especially in the restaurant sector," Kennedy wrote. "I am working to resolve issues including final paychecks as quickly as possible."
