After sending a termination email to a supposedly defunct address, this employer now has to go through the unfair dismissal process despite employee’s clear misconduct.
The FWC has 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, thereby allowing him to file the claim outside the usual 21-day period.
The Melbourne parcel sorter – who was sacked after allegedly flying into a “fit of rage” during a disciplinary meeting – claims he did not receive the initial notice of dismissal, which his employer sent to a personal email address, and only became aware of the sacking when a termination letter arrived via registered post five days later. The FWC accepted this claim.
It may sound like a flimsy argument, but Swaab Partner Michael Byrnes says it is used “all the time” in the digital age.
“Ultimately, you need to be able to demonstrate that your employee has been notified of the termination of employment, and that can be tricky with email,” says Byrnes.
Termination email versus termination letter
This saga poses two big questions. Firstly, was the employer justified when it dismissed the worker? And secondly, did the employer make adequate efforts to notify the worker of his dismissal?
The employer says the answer is “Yes” to both questions. In its submission to the FWC, it claims the worker “became incensed” during a meeting that had been called to discuss his ongoing – but unspecified – misbehaviour.
“[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,” the submission reads.
“He also created some holes in the wall and also 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. But 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.”
Unpacking 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, in “exceptional circumstances”, the FWC can use its discretion to extend the time frame.
In this case, the employer argued that the 21-day period began when it sent the dismissal via email, and therefore the worker had missed his window of opportunity. The worker disagreed, and the FWC sided with him.
“It really is important that an employer doesn’t take shortcuts.” – Michael Byrnes, Partner Swaab.
“The advice I give is to send it by a range of means, including perhaps sending a text message to the employee to tell them to check their email, and then also send it via courier,” says Byrnes.
Even better is to inform the worker in person.
“The commission has made it clear previously that the most appropriate way of communicating a decision to terminate employment is face to face. Or, of course, at the moment due to COVID restrictions, over a Zoom call.”
Byrnes notes that, in exceptional circumstances, a face-to-face approach might not be appropriate.
“This is arguably one of those situations, because it is alleged that the employee has acted in a way where there is a safety risk. And, for that reason, they didn’t want him back on the premises.”
But he says the employer must still obtain verbal or written confirmation that the worker has received the notice of dismissal.
Regarding the FWC’s decision to allow the worker to challenge, the employer’s People and Culture Team Lead tells HRM: “This was an ‘out of time’ hearing which followed a summary dismissal of an employee for being violent and aggressive.
“We advised the employee of termination by an email address that was contained in our system on the day following his appalling behaviour and we followed up by Australia Post mail with the paper copy.
“We are disappointed that the email address on our system was not accepted as a valid email address for the purposes of this hearing, but we accept the decision of the Fair Work Commission.”
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, Byrnes says he may prevail.
“The FWC will look at the objective seriousness of the conduct that he engaged in during that meeting. There will need to be findings of fact about what it is he actually did.”
Another issue is procedural fairness.
“Did they give the employee an opportunity to respond to his termination?”
What’s more, the employer will likely need to establish a pattern of inappropriate behaviour.
“A single instance of misconduct can warrant termination of employment, but it does need to be objectively very serious,” says Byrnes.
The key takeaway from this case for employers 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 an employer doesn’t take shortcuts.”
Termination emails. Procedural Fairness. The right to respond. The world of HR law can be confusing for newcomers. AHRI’s Introduction to HR Law is designed to equip you with the skills you’ll need. Sign up to the next short course on 15 December.