Unfair dismissal; when does dismissal take effect

This extract from a decision of the Fair Work Commissions deals with the legal essentials for a the termination of an employment relationship.

 

“[14]  A dismissal does not take effect until an employee becomes aware of the dismissal or at least has a reasonable opportunity to become aware of it. In Ayub v NSW Trains [2016] FWCFB 5500 the Full Bench said:

 

[41] We therefore do not consider that there is any proper exception to the general proposition established by the authorities under the WR Act and the FW Act that a dismissal cannot take effect for the purposes of those statutes before it is communicated to the employee. There is little support for the existence of any such exception which may be derived from the common law. While it is not inconceivable, as earlier stated, that a contract of employment might expressly provide that it may be terminated by the employer on notice to the employee effective from a time prior to receipt of the notice by the employee, we do not consider for the reasons we have stated that any such contract could be treated as determining the date of effect of a dismissal for the purposes of s.394(2)(a). Termination of employment in accordance with such a provision would be in contravention of s.117(1).

 

[15]    The Bench in Ayub also considered the circumstances in which termination of employment is conveyed to an employee by email. The Bench said;

 

[50] In a situation where an employee is informed by email that he or she has been dismissed, the employee can usually be regarded as knowing or having a reasonable opportunity to know of the dismissal when the email is received in the inbox of the employee’s usual email address. We note in this connection that s.14A of the Electronic Transactions Act 1999 (Cth) provides that an email is deemed to have taken place when the email becomes capable of being retrieved by the addressee at an email address designated by the addressee. There may be circumstances in which mere receipt of an email may not constitute a reasonable opportunity to become aware of a dismissal – for example when the employee has not read the email because of an incapacitating illness or is legitimately unable to access their email for other reasons. However a simple refusal to read an email would of course not operate to delay the date of effect of the dismissal.

 

[16]    Although the Applicant said he did not read the email on 8 December 2023 I am not satisfied on the evidence that he did not have a reasonable opportunity to know of the dismissal until a date later than the date on which it was received by him. I therefore conclude that the dismissal in this case took effect when the Applicant received the email in his inbox on 8 December 2023.

 

[17]    As the application was not filed until 28 January 2024, the period of time for the filing of the application expired on 29 December 2023 and it is out of time by a period of 30 days.

 

[18]    The Applicant has asked the Commission to exercise its discretion to extend the time limit under s.394(3) of the Act. That course was opposed by the Respondent. The remainder of

 

 

 

this decision deals with the question of whether or not the time for the making of the application should be extended.

 

Legislation

 

[19]    Section 394 of the Act provides that the Commission may allow a further period for an application for an unfair dismissal remedy to be made if the Commission is satisfied that there are exceptional circumstances, taking into account the following matters:

 

(a)     the reason for the delay; and

(b)     whether the person first became aware of the dismissal after it had taken effect; and

(c)      any action taken by the person to dispute the dismissal; and

(d)     prejudice to the employer (including prejudice caused by the delay); and

(e)     the merits of the application; and

(f)      fairness as between the person and other persons in a similar position.

 

[20]    I deal with these criteria below.”

 

 

 

Mohammad v Surelinc Services Pty Ltd (2024) FWC 2024 delivered 17 April 2024 per Roberts DP