Unfair dismissal; date of dismissal

This portion of an unfair dismissal case in the Fair Work Commission sets out the legal principles applicable to the issue when a dismissal takes effect.

“When did the dismissal take effect?

[29] To determine whether an unfair dismissal application is made in time, the Commission must first determine when the dismissal took effect.

[30] A dismissal does not take effect until an employee is aware that the employee has been dismissed or has at least had a reasonable opportunity to become so aware. This was relevantly considered in relation to s.394(2) by the Full Bench of the Commission in Ayub v NSW Trains16 where at [36] it was held:

“Having regard to the language, purpose and context of s 394(2)(a), we do not consider… that the provision should be interpreted or applied so that the 21-day period to lodge an application for an unfair dismissal remedy could begin to run before an employee who has been dismissed at the initiative of the employer became aware that he or she had been dismissed, or at least had a reasonable opportunity to become aware of this.”

[31] Whether an employee has had a reasonable opportunity to become aware will necessarily turn on all the facts of the matter.17

[32] Noting the Applicant’s evidence that the letter of termination went to his junk mail and that he did not become aware of the dismissal until 19 October 2023, I asked the parties to address me on when the dismissal took effect.

Applicant’s Submissions

[33] The Applicant submitted that the dismissal occurred on 19 October 2023 – the date the Applicant became aware of the letter of termination. In respect of this issue, the Applicant gave evidence that:

  • The two emails dated 26 September 2023 and the email attaching the termination letter on 9 October 2023, all of which were sent from bryn@digdigdemolition.com, were filtered into his junk email. · The Applicant did not see any of the emails from bryn@digdigdemolition.com when they were delivered into his junk email.
  • At the time the show cause and termination letters were sent, the Applicant was not expecting communications from the Respondent other than matters relating to his ongoing WorkCover claim. This was for two reasons. First, he had previously explained

to Ms Betts that he was unable to participate in the investigation relating to the OHS incident. Second, because he believed that Mr Lynch was in receipt of the COCs he had been sending and was therefore aware that he was still in a condition where he was unable to attend or participate in any investigation or disciplinary process.

  • The Applicant became aware of the termination letter at approximately 12:30AM on 19 October 2023, when his wife was organising his emails and discovered the emails from Mr Lynch.

[34] The Applicant further submitted that he did not have a reasonable opportunity to become aware of the termination before 19 October 2023.

[35] In this regard the Applicant submitted his circumstances could be distinguished from those in Foyster v Bunnings Group Limited18. In Foyster a Full Bench of the Commission found that an employee who had corresponded with his employer via email, had failed to avail himself of the reasonable opportunity to become aware of the fact of his dismissal, by not opening emails from his employer delivered to his inbox. The Applicant submitted in this case, unlike Foyster, the relevant emails had gone to junk mail. As the Applicant had been receiving correspondence from the Respondent regarding his Workcover claim in his regular inbox, there was no reason for the Applicant to expect other emails from the Respondent to go to junk mail.

[36] In addition, the Applicant submitted that stress and other mental health conditions arising from his physical injury, as well as the effects of the medication he was taking, were factors contributing to him not regularly checking his junk folder.

Respondent’s Submissions

[37] The Respondent submitted that the termination took effect when it was emailed to the Applicant on 9 October 2023.

[38] The Respondent submitted that the Applicant’s evidence that he was unaware of the dismissal until 19 October 2023 should be rejected. In this regard the Respondent argued that the Applicant must have been aware of the termination on 9 October because the Applicant ceased sending in COCs to cover the period after 7 October 2023. The Respondent submitted:

“[It] is too much of a coincidence that the Applicant simply ceased his pattern of supplying CoCs immediately after the Respondent sent the letter of termination on 9 October 2023 for an unconnected reason.” 19

[39] In addition the Respondent argued the Applicant had not provided adequate evidence on how he became aware of the dismissal and had failed to explain why the Applicant was not monitoring his emails. The Respondent also submitted that as the Applicant had received other emails from the Respondent into his inbox from the domain name “digdigdemolition.com”, it was unlikely that emails from bryn@digdigdemolition.com which has the same domain name, would go into junk mail.

[40] In the alternative, the Respondent submitted the Applicant had a reasonable opportunity to become aware of his dismissal before 19 October 2023. In this regard the Respondent argued

that given the Applicant was aware that he was under investigation for serious misconduct, had been in contact with the investigator regarding the investigation, and had made complaints about the investigator’s conduct in the investigation, he reasonably ought to have been monitoring his email inboxes at least once a week for any emails from the Respondent.

[41] The Respondent relied on the decision in Kamau v OC Connections.20 In this decision, Commissioner Bissett held that the delivery of a notice of termination of employment to junk email, where the Applicant was aware that emails from the Respondent regularly go to junk mail, did not provide a reasonable explanation for delay in making an application to the Commission.

Consideration

When did the Applicant become aware of the Dismissal?

[42] On the balance of probabilities, I accept the Applicant’s evidence that he did not become aware of the dismissal until 19 October 2023. I accept the Applicant’s evidence that the notice to show cause letter and termination letter went to his junk email and he did not become aware of the emails until his wife alerted him at 12.30am on 19 October 2023. I have come to this conclusion noting the following factors.

  • As noted above, the show cause letter and termination letter were emailed to the Applicant from the email address bryn@digdigdemolition.com. In the past, email correspondence sent by the Respondent to the Applicant was sent from sales@digdigdemolition.com. While I note the Respondent’s contention that an email with the same domain is unlikely to go to junk mail, there was no substantial evidence put before me regarding this.
  • Because the Applicant had previously received emails from the Respondent from the email sales@digdigdemolition.com I accept he was not looking for correspondence from the Respondent from a different email address.
  • The show cause letter proposed the Applicant attend a meeting on the 27 September 2023 or respond in writing by 4 October 2023. The Applicant did neither. On the balance of probabilities it seems more likely than not that if the Applicant had been aware of the show cause letter he would have made some response before termination. I have determined this noting that the Applicant did make efforts to object to Ms Betts’ investigation findings in relation to the bullying complaint on 18 August and 5 September 2023, and also noting that the Applicant appears to have been receiving some legal assistance from 18 August 2023.

[43] I note the Respondent’s argument that the fact the Applicant stopped submitting COCs from 7 October 2023 indicates that the Applicant knew he was terminated. In cross- examination, the Applicant gave further evidence to the effect that:

  • Due to financial issues at the time of termination, he was unable to contact his doctor immediately to arrange for a new COC.
  • He had a phone consultation with his doctor on 19 October 2023, and acquired a COC for the period 8 October 2023 to 5 November 2023 following that consultation.21
  • This consultation occurred after he had sent the email to Mr Lynch at 4:04AM.
  • Notwithstanding that the last COC provided to the Respondent expired on 7 October 2023, he had more COCs provided from his doctor which confirmed he did not have capacity to work to the current date.

[44] While it does seem an unusual coincidence that the Applicant stopped providing COCs after 7 October 2023, ultimately this is circumstantial evidence and on balance I am satisfied with the Applicant’s explanation for the delay given in witness evidence as outlined at paragraph [43] above.

Did the Applicant have a reasonable opportunity to become aware of the dismissal prior to this date?

[45] Having found that the Applicant did not become aware of the dismissal until 19 October 2023, I now turn to whether the Applicant had a reasonable opportunity to become aware of the dismissal prior to 19 October 2023.

[46] Given the evidence in front of me, I am satisfied the Applicant did not have a reasonable opportunity to become aware of the dismissal prior to 19 October 2023. In this regard I have considered the matters set out in the following paragraphs.

[47] As regular communication from the Respondent went to the Applicant’s inbox, there was no reason for the Applicant to expect that communication from the Respondent would go to his junk folder. In this regard, this matter can be distinguished from Kamau v OC Connections22, as the Applicant in that matter was aware that correspondence from the Respondent regularly went to the junk folder.

[48] I note the Respondent’s contention that the Applicant should have been expecting correspondence from the Respondent regarding the investigation, and therefore it was reasonable for the Applicant to be checking all of his email inboxes once a week. I reject this submission on the following grounds:

  • The Applicant was receiving correspondence from the Respondent from another email address and had no reason to believe correspondence from the Respondent would go to his junk mail.
  • The Applicant provided uncontested evidence that he was not expecting correspondence regarding the investigation as he had communicated to Ms Betts he was unable to participate further in the investigation relating to the OHS incident.
  • The Applicant was off work for an injury and on medication which impacted his mental capacity. The Respondent was aware of this given the Applicant had consistently provided the Respondent with COCs.

[49] The Applicant checked his junk box within 10 days of the termination. In the circumstances I am of the view this was reasonable.

[50] Given the Applicant was away from work for an injury, in my view, once the Applicant had failed to show up for the show cause meeting or respond in writing, it was incumbent on the Respondent to take steps – such as phoning the Applicant – to ensure he had received the show cause letter, before terminating him by email correspondence. If the Applicant had been alerted to the show cause letter by a phone call, even if the termination letter had gone to the junk folder, it is unlikely he would be able to sustain an argument that he had no reasonable opportunity to become aware of the termination. However, this did not occur in this case.

[51] I also note that despite the termination letter stating that “Jodie” would be in contact with the Applicant to make further arrangements to effect the termination, there is no evidence before me that such contact occurred. If a follow-up communication had been made with the Applicant following the termination letter, it is likely that the Applicant’s argument of having no reasonable opportunity to become aware of the termination would be limited to the date of that follow-up communication.

[52] Accordingly for the reasons set out above I find the dismissal took effect on 19 October 2023.

  1. Was the Application made within 21 days after the dismissal took effect?

[53] The 21-day period prescribed in s.394(2) does not include the day on which the dismissal took effect.23

[54] As I found above, the dismissal took effect on 19 October 2023. The final day of the 21-day period was therefore 9 November 2023 and ended at midnight on that day. The Applicant made his application on 9 November 2023 and accordingly made his application in time.”

Michalitsis v Dig Dig Demolition Pty Ltd (2023) FWC 3430 delivered 20 December 2023 per  Allison C