These passages from a Fair Work Commission case decision identify the legal issues involved when determining when a dismissal of an employee is regarded by the law as having occurred.
“It is well-established that a termination of employment takes effect when it has been communicated to the employee. The Respondent argues that this date was 15 December 2021. For his part, the Applicant was unable to provide the date by which he became aware of his dismissal, stating only that it was after 15 December 2021, but he could not recall when he accessed his email to read the letter of termination.
In Ayub v NSW Trains (Ayub), 2 the Full Bench considered that a dismissal without notice is to be interpreted on the basis that the dismissal cannot take effect for the purposes of Part 3-2 of the Act until the employee knows, or at least has a reasonable opportunity to find out, that he or she has been dismissed.3 The Full Bench explained at paragraph [42] of Ayub:
[42] We likewise consider that the mere delivery of a document to an employee’s usual address notifying the employee of his or her dismissal would not of itself constitute communication of that dismissal, and concomitantly the time at which the dismissal took effect, if the circumstances were that this did not constitute a reasonable opportunity for the employee to actually read the document…”
Hunter v Karara Mining Ltd (2022) FWC 494 delivered 11 March 2022 per Beaumont DP