In proceedings in the Fair Work Commission, including cases concerning dismissals, it is often necessary to determine the date of a dismissal which can be disputed.
“[22] On the topic of when a dismissal takes effect, the principles were summarised by the Supreme Court of NSW (White J) in Fardell v Coates Hire Operations Pty Ltd6 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;
[23] There was no written notice in this case. I regard that a date of dismissal is ascertainable however on the basis of what a reasonable person in Ms Permus’s position with knowledge of the background of the dealings between the parties would have thought was the effective date of dismissal. I do not accept the dates of dismissal suggested by GYG of either 20 July 2024 or 24 September 2024. It cannot be 20 July 2024 because in August 2024 GYG’s managers and Ms Cook from GYG’s head office told Ms Permus that she was still employed. The response filed on 24 September 2024 was not a notice to Ms Permus of dismissal. It was a response to her claim that she was being discriminated against during her employment by being refused shifts. I am satisfied however that the employment came to an end and it did so at the initiative of GYG at the conclusion of the conference in the Commission when the parties were unable to resolve the discrimination claim. YG should have been clear to Ms Permus at the end of that conference that she had been dismissed. It did not. Rather, it maintained at that time that Ms Permus would be given no more shifts for performance reasons. I consider that this was in effect notice of dismissal. It was an unusual way to bring about a dismissal and GYG should have been clearer in doing so. Despite these misgivings I consider a reasonable person in Ms Permus’s position would have taken GYG’s action as amounting to dismissal.
[24] Ms Permus had 21 days from the date of the conference to lodge her application. The application was lodged on 11 November 2024 and so was not made within 21 days as required by s394(2)(a).”
Permus v Guzman Y Gomez Franchising Pty Ltd – [2025] FWC 358 – 7 February 2025 – Slevin DP