The date of a dismissal can sometimes be critical under the Fair Work Act. This is how it is established.
“Date of dismissal
[14] 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 30 September 2022. For his part, the Applicant stated that his dismissal came into effect on 1 October 2022.
[15] 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…
[16] The issue before me now is whether the Applicant had a reasonable opportunity to find out he had been dismissed on 30 September 2022. For the reasons that follow, I am satisfied that he did.
[17] It is accepted that in a situation where an employee is informed by email that she or he has been dismissed, the employee can usually be regarded as knowing, or having had a reasonable opportunity to know, of the dismissal when the email is received in the inbox of the employee’s usual email address. 4
[18] The Applicant acknowledged that he had received Mr Jacob’s email on 30 September 2022 and read it on that same date. It follows that the date when the dismissal took effect was that same date – 30 September 2022. Therefore, the Applicant’s unfair dismissal application was made one day late.”
Passages from Exelby v Brogen Investments Pty Ltd (2022) FWC 3083 delivered 5 December 2022 per Beaumont DP