23 Oct DISMISSAL: NES NOTICE OF TERMINATION
A Full Bench of the Fair Work Commission has recently made an important decision in relation to the meaning of a “dismissal” under s 386 of the Fair Work Act 2009 (FW Act) and the meaning of “notice of the dismissal” under s 383(a)(i) of the FW Act.
In Metropolitan Fire and Emergency Services Board v Dugan  FWCFB 4878 the Full Bench determined:
- The definition of a dismissal for the purposes of the unfair dismissal regime is directed at the termination of the employment relationship and not the termination of the employment contract. These concepts are related but distinct. Determining whether the employment relationship has ended is a question of fact;
- A notice of termination which would be ineffective to end the employment contract can still operate to terminate the employment relationship. For example, a wrongful dismissal of an employee by an employer, or a unilateral resignation by an employee other than in accordance with the terms of the contract, is effective to bring the employment relationship to an end, but it does not automatically discharge the contract of employment;
- An employer’s failure to comply with the notice of termination provisions in s 117 of the FW Act does not mean the definition of a “dismissal” in s 386(1)(a) of the FW Act is not satisfied. This definition requires a factual assessment of whether the employment relationship has been terminated at the initiative of the employer; and
- Section 383 of the FW Act defines the minimum employment period and states the end point for the service calculation is when the employee is given “notice of the dismissal” or immediately before the dismissal – whichever is earlier.
The Full Bench determined a notice which does not comply with s 117 of the FW Act could still meet the definition of “notice of the dismissal” under s 383. The Full Bench essentially determined these are distinct concepts and that an employee has various potential sources of relief if an employer fails to comply with the notice provisions.
The Full Bench determined a “notice of the dismissal” under s 383 should be interpreted by reference to common law tests to the effect that a valid notice must specify the time of dismissal or the time of dismissal must be ascertainable.
In this case, the termination letter informed Mr Duggan of the MFB’s decision to dismiss him, but stated that the MFB would not implement its decision to dismiss him “until the dispute between the parties has been resolved”. The Full Bench determined this only indicated Mr Duggan would not be dismissed until the dispute was resolved and did not allow Mr Duggan to determine when the dismissal would actually take effect.
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