12 Oct Unfair Dismissal: Letters and Emails
A Full Bench of the Commission in Ayub v NSW Trains  FWCFB 5500 provided some important clarification regarding when a dismissal takes effect. The exact date of termination can be critical for applications that must be filed within 21 days of the unfair dismissal.
On a general level, the Full Bench confirmed a dismissal cannot take effect before an employee is made aware of it:
“We therefore do not consider that there is any proper exception to the general proposition established by the authorities under the WR Act and the FW Act that a dismissal cannot take effect for the purposes of those statutes before it is communicated to the employee…”
Termination by post
If an employer communicates a dismissal via a termination letter sent in the post, it will not always follow that the dismissal date is when the letter arrives at the employee’s address. The critical issue is when the employee has a reasonable opportunity to read the document.
Termination by email
In relation to communicating a termination via email, the Full Bench confirmed the normal rule is the dismissal date will be when the employee receives the email. However, the Bench also clarified that some circumstances will justify a departure from this standard rule:
“There may be circumstances in which mere receipt of an email may not constitute a reasonable opportunity to become aware of a dismissal – for example when the employee has not read the email because of an incapacitating illness or is legitimately unable to access their email for other reasons. However a simple refusal to read an email would of course not operate to delay the date of effect of the dismissal.”
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