Termination email can be challenged as unfair dismissal.

Termination email can be challenged as unfair dismissal.

In a decision announced in September 2021, the Fair Work Commission (FWC) accepted the unfair dismissal claim of an employee who exhibited “violent behaviour” in a conduct meeting because he claims he didn’t realise he’d been dismissed; allowing him to file the unfair dismissal claim outside the usual  21-day period.

After sending a termination email to an email address the employee says is defunct, this employer now has to respond to an unfair dismissal process; despite the employee’s alleged misconduct.

The Melbourne parcel sorter (sacked after allegedly flying into a “fit of rage” during a disciplinary meeting) claims he did not receive the initial notice of dismissal. His employer sent this initial dismissal notice to a personal email address held in their records as being the email address of the employee. The employee says he only became aware of his dismissal when a termination letter arrived via registered post five days later. The FWC accepted the employee’s claim.

Termination email versus termination letter

This saga poses two big questions.

Firstly, was the employer justified when it dismissed the worker?

Secondly, did the employer make adequate efforts to notify the worker of his dismissal?

‘he employer says “Yes” to both questions. In its submission to the FWC, it claims the worker “became incensed” during a meeting called to discuss his ongoing – but unspecified – misbehaviour’. The submission reads ‘[He] entered a fit of rage, swearing loudly with abusive language and threats before slamming the large table in the boardroom and damaging its legs. He also created some holes in the wall and damaged another door on the way out.’

The employee was subsequently ushered off the premises.

The employer says it notified the worker of his dismissal by sending an email to the address it had on file on 22 July 2021.

The worker says he didn’t see the dismissal letter until a physical copy arrived via Australia Post on 27 July 2021. ‘[It] is an email address I no longer use,’ he told the FWC through his union organiser. ‘I do not recall the password.’

Understanding the 21-day rule

According to the Fair Work Act, employees have 21 days to lodge an unfair dismissal claim, not including the day of dismissal. However, the FWC can use its discretion to extend the time frame in “exceptional circumstances”.

In this case, the employer argued the 21-day period began when it sent the dismissal via email; so the employee had missed his window of opportunity. The employee disagreed and the FWC agreed with the employee’s view.

It is strongly recommended any dismissal advice is sent using a range of means including sending an email to the recorded email address; texting a  message to the employee to tell them to check their emails and sending the termination letter via courier so it arrives on the same day wherever possible.

Even better is to inform the employee in person.

The FWC has made it clear in numerous occasions that the most appropriate way of communicating a decision to terminate employment is face to face (alternatively via Zoom or Teams due to COVID restrictions).

It is appreciated that, in exceptional circumstances, a face-to-face approach might not be appropriate; especially if there is a safety risk.

Regardless of the situation, as the employer you must still obtain verbal or written confirmation that the worker has received the notice of dismissal.

Could the employee win back his job?

The employee can now mount a case that his dismissal was unfair. Despite allegations against him of repeated violent and abusive behaviour, the employee may win their claim.

The FWC will look at the objective seriousness of the conduct he engaged in during that meeting including findings of fact about what it is he actually did. The employer will also likely need to establish a pattern of inappropriate behaviour.

Whilst a single instance of misconduct can warrant termination of employment, it does need to be objectively very serious.

Another issue is procedural fairness – i.e. did the employer give the employee an opportunity to respond to his termination? 

Key lessons learned…

The key takeaway from this case is that, if you don’t follow the correct processes, you could find yourself unable to sever ties with a troublesome employee; even if that employee has obviously acted unacceptably. It really is important that you don’t take shortcuts.

With costly implications if you get employee termination wrong, it is best to ask for expert advice sooner rather than later.  Akyra can work with your business to assist and support you with employee performance management.

If you require advice or assistance with your businesses employee management, contact Akyra on 07 3204 8830, for an obligation-free conversation or to discuss any queries you may have.

If you require advice or assistance with employee management, any people management circumstances or managing your workforce post-pandemic, contact Akyra on 07 3204 8830, for an obligation-free conversation or to discuss any queries you may have.

Contact us now to book a time to discuss your areas of potential concern and we will then provide a way forward where it might be needed.


Disclaimer – Reliance on Content

The material distributed is general information only. The information supplied is not and is not intended to be, legal or other professional advice, nor should it be relied upon as such. You should seek legal or professional advice in relation to your specific situation.


Source: https://www.hrmonline.com.au September 2021

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