Given the serious nature of matters such as dismissals, employers should, as far as reasonably practicable, communicate such matters in person to ensure that there is no confusion about when the employee was made aware of any issues with their employment.
Understandably this may not always be possible, particularly in the COVID-19 context. Employers should therefore regularly ensure that alternative contact details for employees are up-to-date. Failure to do so can lead to difficulties in communicating important matters to employees and can result in an employee not being aware of any issue in a timely manner or at all.
This was seen in the recent decision of Petkovski v M J Luff Pty Ltd T/A BorderExpress [2021] FWC 5936,where the Fair Work Commission (FWC) was tasked with determining the date on which an employee was notified of their dismissal, a decision which would ultimately affect whether the employee’s unfair dismissal application fell within the 21-day statutory time limit.
The employee was engaged as a Parcel Sorter for M J Luff Pty Ltd (the Employer).
On 21 July 2021, the employee was called into a meeting with the Employer to respond to allegations of misconduct. At this meeting, he was handed a letter of the allegations and asked to show cause as to why his employment should not be terminated.
In that meeting, it was alleged that the Employee flew into a fit of rage, using abusive language and making threats towards others in the meeting. Based on this reaction, the Employer decided to terminate the employee’s employment.
On 22 July 2021, the Employer sent a letter to the employee’s private email address notifying him that it had decided to summarily dismiss him from his employment. This email address was the only email address that the Employer had on file and it was provided by the employee at the beginning of his employment in 2018.
The Employer also sent the summary dismissal letter to the employee’s home address by registered post, which did not arrive until 27 July 2021.
On 13 August 2021, following receipt of the letter in the post, the employee lodged an application before the FWC claiming that his dismissal was unfair.
The Employer raised a jurisdictional objection to the employee’s application, stating that his dismissal took effect on 22 July 2021 when it emailed the employee the letter of termination. The Employer submitted that the employee had therefore submitted his application one day outside the 21-day statutory time limit.
The employee submitted that he did not receive the email on 22 July 2021 as it was sent to an old email address which he no longer used and could not access. The employee submitted that it was not until he received the letter by post on 27 July 2021 that he become aware of his dismissal.
The FWC was required to address the jurisdictional objection and resolve the contention surrounding when the date in which the employee was notified of the termination.
The FWC ultimately accepted that the employee could not have been given notice when the Employer emailed him his termination letter as his personal email address was not valid or current.
The FWC understood the Employer’s intention in sending the termination letter to the employee’s personal email address that it had on file and that it was not to know that this email address was no longer in use. However, in terms of providing notice to the employee in relation to his termination, the FWC did not accept that this mode of communication provided the employee with a reasonable chance, in the circumstances, to find out that he was dismissed.
Because a dismissal does not take effect until it is communicated to an employee, the FWC held that it was not until the employee received the termination letter via post on 27 July 2021 that he was properly notified of his dismissal.
Therefore, the FWC allowed the employee’s application for unfair dismissal to proceed given that it was lodged within the statutory time limit.
Where it is not possible to notify an employee of matters (such as the termination of their employment) in person, employers should ensure that all reasonable steps are taken to ensure that the employee is notified by alternative means.
Employers must therefore ensure that employee contact details are current and up-to-date, whether that be their email address, phone number or place of residence and that delivery and/or read receipts are obtained to confirm that the message has been delivered.
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