Unfair dismissal; when does a dismissal take effect?

The Fair Work Commission’s benchbook about unfair dismissal is an excellent source of the law and procedures of unfair dismissal in Australia for national system employers and employees. Here is its summary of the legal principles which determine when a dismissal takes effect; something which is often important, particularly in the context of the time limits to take proceedings for an unfair dismissal remedy.

“A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.[1]

 

An employer must not terminate an employee’s employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given).[2]

 

In certain circumstances a dismissal can be communicated orally.[3] This includes:

 

an employee employed for a specified period of time, for a specified task, or for the duration of a specified season

an employee whose employment is terminated because of serious misconduct

a casual employee

an employee (other than an apprentice) to whom a training arrangement applies and whose employment is for a specified period of time or is, for any reason, limited to the duration of the training arrangement

a daily hire employee working in the building and construction industry (including working in connection with the erection, repair, renovation, maintenance, ornamentation or demolition of buildings or structures)

a daily hire employee working in the meat industry in connection with the slaughter of livestock

a weekly hire employee working in connection with the meat industry and whose termination of employment is determined solely by seasonal factors, or

an employee prescribed by the regulations as an employee to whom this Division does not apply.[4]

Where the communication is in writing only, the communication must be received by the employee in order for the termination to be effective.[5]

 

Important

A notice of termination which does not comply with s.117 of the Fair Work Act may be effective to bring about the termination of the employment relationship and may constitute ‘notice of the dismissal’ within the meaning of s.383(a)(i) of the Fair Work Act.[6]

 

A notice of termination may still be valid even if it is stated to take effect subject to a condition, such as a future date, provided that:

 

the notice clearly expresses the condition

the condition has been satisfied, and

the employee is in a position to know that the condition has been satisfied.[7]

Where payment in lieu of notice is made the dismissal usually takes effect immediately.[8]

 

Example

If an employee is given 4 weeks’ notice that they will be dismissed, and they work through the 4 week period – then the date that the dismissal takes effect will generally be at the end of that 4 week notice period.

 

HOWEVER, if an employee receives 4 weeks’ pay in advance in lieu (instead) of working and is NOT required to work through the 4 week notice period – then the date that the dismissal takes effect will generally be the last day worked unless the employer specifies a different date of dismissal.

 

Note: The example above provides a general guide, however this may not always be the case – issues such as the terms of a contract may affect the date a dismissal takes effect.[9]”