Unfair and unlawful dismissal time limits

The issue of the date and time an employment relationship terminates is an issue which comes before the Fair Work Commission surprisingly often; most commonly but not always in the context of whether an unfair dismissal claim  has been lodged with the Fair Work Commission within  the statutory time of 21 days. Here is an extract from a recent case which deals with the legal principles at play.

“A dismissal takes effect when the employment relationship has ended. 1 The termination of the employment relationship is a different concept from the termination of an employment contract.2

The employment relationship, in Australia, operates within a legal framework defined by statute and by common law principles, informing the construction and content of the contract of employment. 3

The unfair dismissal regime in Part 3–2 of the Act applies to “national system employees” and “national system employers”. 4 National system employees are employees of national system employers, being employers which bear particular characteristics such as to make them amenable to particular heads of legislative power of the Commonwealth in s 51 of the Constitution.5 Beyond this, the Act does not seek to establish a statutory definition of what constitutes an employee. National system employees for the purposes of Part 3–2 of the Act are parties to an employment relationship at law.6

Whether an employment relationship continues to exist is a question of fact. 7 The range of facts or factors which may need to be examined to answer the question of whether an employment relationship continues to exist will be determined by the circumstances of a particular case, and may include, without limitation, whether the employee is being paid a wage or other benefits or entitlements, whether the employee is attending or performing work for the employer, whether the employer is exercising, or has the ability to exercise, control over the execution of work by the employee,8 and the terms of the employment contract.

The question of whether an employment relationship has ceased to exist does not depend upon the parties’ subjective intentions or understandings. Rather, it depends upon what a reasonable person in the position of the parties would have understood was the objective position. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. 9”

Cazier v Alex Medical Services Pty Ltd (2019) FWC 8130 delivered 29 November 2019 per Saunders DP