Termination of employment must be specific

To be effective a letter purporting to terminate the employment of an employee must  clearly state when the termination is to occur or be capable of identifying the date.

“It is well established that a termination of employment does not take effect unless and until it is communicated to the employee whose employment is being terminated. 1 In Ayub v NSW Trains2, the Full Bench said:

“[17] At common law, a contract of employment may unilaterally be terminated by the employer with notice or by way of a summary dismissal. The general principle is that to effect the termination of a contract of employment, an employer must, subject to any express provision in the contract, communicate to the employee by plain or unambiguous words or conduct that the contract is terminated. Where the communication is in writing, the communication must at least have been received by the employee in order for the termination to be effective. [(1986) 60 ALJR 78] Where notice is given of the termination of the employment contract, then the contract will terminate at the end of the period of notice specified in the communication to the employee. [(1984) 5 FCR 447] The principles in this respect were summarised by the Supreme Court of NSW (White J) in Fardell v Coates Hire Operations Pty Ltd [(2010) 201 IR 64] as follows:

[82] To be effective, a notice of termination of a contract of employment must specify a time when termination is to take effect, or that time must be ascertainable (G J McCarry, Termination of Employment Contracts by Notice (1986) 60 ALJ 78 at 79; Burton Group Ltd v Smith [1977] IRLR 351 at 354). The notice is to be construed according to how it would be understood by a reasonable person in the position of the recipient who had knowledge of the background of the dealings between the parties (Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19; [1997] AC 749 at 767-768; Carter v Hyde [1923] HCA 36; (1923) 33 CLR 115 at 126; Prudential Assurance Co Ltd v Health Minders Pty Ltd (1987) 9 NSWLR 673 at 677; Fightvision Pty Ltd v Onisforou [1999] NSWCA 323; (1999) 47 NSWLR 473 at [99]).” 3

In this case it is clear that the Letter does not specify any time for Ms Burke’s termination to take effect and as a result, cannot be regarded as a valid notice of termination.”

Burke v Morisset High School P&C Association T/A Morisset High School P&C – [2017] FWC 3396 – 4 July 2017 per Dean DP