Unfair dismissal; when does dismissal take effect?

The legal issue in fair work law of when a dismissal or termination of employment takes effect is often vexed and sometimes difficult to determine. But here are some general principles.

“The legal principles

[59] It is a pre-condition to determining an unfair dismissal application under the FW Act that an applicant be a person who has been dismissed.9

[60] Section 386 of the FW Act provides:

“386 Meaning of Dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

[61] The following observations by a full bench of the Commission, although decided under a former Act, 10 are relevant in the context of this matter:11

“…there [needs] to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether the act of the employer [resulted] directly or consequentially in the termination of the employment…In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.”

[62] It is also noteworthy that the Commission’s on-line unfair dismissal quiz at www.fwc.gov.au, which Mr Gannon accessed, contains the following information:

“The 21 day deadline can be confusing – it relates to when your dismissal ‘becomes effective’, which is the day your employment actually finished:

  • some people are dismissed and finish work on the same day, so their dismissal takes effect on that day
  • some people are dismissed with a notice period – for example, 2 weeks – when they continue to work. For these people their dismissal does not become effective until the end of their notice period, when they finish working
  • some people are not required to work out their notice period but receive payment instead of notice. For these people their dismissal takes effect on the day that they physically finish working at the place of employment.

Put simply, generally your dismissal becomes effective on the day you stop attending the place of employment (regardless of any notice period), and that is when the clock starts ticking on the 21 day deadline.”

Gannon v Millers Roofing Pty Ltd  [2020] FWC 339 delivered 29 January 2020 per Anderson DP