The requirements around when notice of termination is required and how to provide that notice can be difficult for employers. An employer’s obligations with respect to notice and notice periods are specified in the Fair Work Act 2009 (Cth) (FW Act).
Except in circumstances of serious misconduct, employers are required to provide notice of termination to employees in accordance with the National Employment Standards contained in the FW Act, the employee’s contract of employment and any relevant industrial instrument, such as a modern award or enterprise agreement.
Section 117 of the FW Act provides that an employer is to give an employee written notice of the specific day of termination meaning the date the employment relationship ends. The date of the termination letter (written notice) must reflect the actual date the notice is given.
Notice of termination of employment may be given to an employee by delivering it personally (by hand), or by leaving or sending the notice to an employee’s last known address (ideally, by registered post).
The concept of giving notice may seem simple, but the complexities of the employment relationship can often challenge these seemingly straightforward processes.
For example, in Duggan v Metropolitan Fire and Emergency Services Board [2017] FWC 1197, the Fair Work Commission (FWC) had to determine how and when the employer provided notice of termination of employment to the employee.
Mr Duggan commenced employment with Metropolitan Fire and Emergency Services Board (the Board) on 9 February 2016 as a recruit fire fighter. At the end of April 2016, the Board discovered that adverse findings had been made against Mr Duggan in relation to his former career as an osteopath. The matter escalated and the United Firefighters’ Union of Australia notified the Board of a dispute under the Metropolitan Fire and Emergency Services Board, United Firefighters Union Of Australia, Operational Staff Agreement 2010 (the Agreement).
On 24 May 2016, the Board advised Mr Duggan that it had decided to terminate his employment but the termination would not be implemented until, in accordance with the Agreement, the dispute between the parties had been resolved. The dispute was finally resolved on 10 November 2016, following the decision of the Full Bench of the FWC. On the same date, Mr Duggan was advised that his employment would be terminated with immediate effect and that he would be paid one week in lieu of notice.
Mr Duggan subsequently lodged an Unfair Dismissal Application. The Board argued that Mr Duggan was not entitled to make a claim for unfair dismissal. The Board submitted that at the time Mr Duggan was given notice of his termination of employment (24 May 2016), he was within the minimum employment period.
Mr Duggan submitted that because the letter of 24 May 2016 did not state the specific date when his employment would be terminated, it did not comply with section 117 of the FW Act. However, Mr Duggan stated that the letter of 10 November 2016 was a valid notice and that this letter was given to him outside of the six month minimum employment period.
The FWC held that section 117 appears to require a high level of specificity and “requires that the employee who receives the notice knows at the time the employee receives the notice the actual day of termination.” In Commissioner Ryan’s view, the letter of 24 May 2016 did not meet the requirements of section 117 as it did not state the day (including date) of termination.
It was determined that Mr Duggan was given notice of termination of his employment on 10 November 2016, nine months after the commencement of his employment and outside of the minimum employment period. Accordingly, Mr Duggan had access to the unfair dismissal jurisdiction.
Failure to comply with the notice requirements may have unintended consequences for employers – such as employees gaining access to the unfair dismissal jurisdiction, as was the case with Mr Duggan. Further, as noted in Commissioner Ryan’s decision, employers are reminded that section 117 is a civil penalty provision. This means that if an employer fails to comply with section 117 they may be subject to penalties ordered by a court for failing to provide the correct notice and in the correct form.
