When does a dismissal take effect?

When does a dismissal of an employee take effect? This extract from a recent unfair dismissal case sets out the principles.

“Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.394(3).

In this case, there is a dispute about when Mr Mihajlovic’s alleged dismissal took effect.

A dismissal takes effect when it is communicated to the employee who is being dismissed, thought it may be communicated orally. 1 Subject to any express provision in the contract of employment, the general principle is that an employer must communicate to the employee by plain or unambiguous words or conduct that the contract is terminated.2

Where the communication of the dismissal is in writing, the communication must have been received by the employee in order for the termination to be effective or at the very least there must have been reasonable opportunity for the employee to discover that their employment was terminated. 3 In the case of a termination by email communication, an 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 address.4 In Ayub Trains, a Full Bench held:

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 an 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 effect of the dismissal. 5”

Mihajlovic v Berwick City Soccer Club (2021) FWC 6363 delivered 3 December 2021 per Mansini DP