“Let me make one thing perfectly clear …” FWC’s practical approach to notice of termination

Earlier this year, we discussed the importance of providing specific written notice of termination to an employee (see our blog: Two Weeks’ Notice: What are the requirements for notice of terminat...) in accordance with section 117 of the Fair Work Act 2009 (Cth) (FW Act).

Section 117(1) of the FW Act states that, an employer must not terminate an employee’s employment unless, the employer has given the employee written notice of the termination date. This can sometime be problematic when termination occurs verbally before any formal written notice of termination has been prepared.

However, in a recent unfair dismissal application, the Fair Work Commission (FWC) has indicated, if the circumstances justify it, it will adopt a practical approach to issues of this kind.

In Rachael Raven v Bank Australia Limited T/A Bank Australia [2017] FWC 3289, the FWC considered whether a verbal notice of termination was sufficient notice of termination under the FW Act to effect the dismissal of an employee within the minimum employment period (six months for employers that are not small business employers).

Facts

Ms Raven (the Employee) was employed by Bank Australia (the Employer). Her employment was subject to a probationary period ending on 3 April 2017.

On 29 March 2017, the Employer requested a meeting with the Employee to discuss performance issues. At the conclusion of the meeting, the Employee was advised her employment had been terminated with immediate effect. A written notice of termination was later prepared and posted to the Employee.

Despite the verbal termination of employment, the Employee showed up for work on Monday, 3 April 2017.

The Employee claimed to have been confused about what occurred during the meeting and argued that termination of her employment did not take effect until she received the written notice in the post on 5 April 2017.

The Employer objected to the ensuing unfair dismissal application on the grounds that the Employee, having been terminated within the requisite six month period, was not protected from unfair dismissal.

Decision

In dismissing the application, the FWC found the Employee’s submission that she was upset and confused and did not understand what had occurred in the meeting was not a “satisfactory” explanation.

Commissioner Gregory noted the Employee’s actions after the meeting suggested the contrary. In particular, the Employee had:

  1. Collected her personal belongings and left, only to return, of her own accord, and throw her keys onto the counter, stating “I won’t be needing these anymore”;
  2. Sent a text message to a staff member which read “Good luck everyone please remove me from the group chat” in reference to an employee social media chat group;
  3. Sent a text message to a Branch Manager stating “Shit day John sorry, no longer with bank Australia” and received a text in response confirming her departure and offering a reference;
  4. Called the Branch Manager two days later, stating she was upset, confused and did not have a clear understanding of why she was dismissed; and
  5. Received her termination payment but failed to question why the payment had been made.

He noted that, despite the clear deficiencies in the Employer’s termination process, it was clear the Employee was aware her employment had been terminated on 29 March 2017 and, as a result, had not met the minimum employment period to be protected from unfair dismissal.

The Employee’s confusion about the meeting did not result in any breach by the Employer of the employment contract or the FW Act and, even if it did, that would not change her date of termination.

Lesson to be learnt

Whilst the FWC has shown it will adopt a practical approach to these types of matters, employers should not rely on a particular FWC Member’s sense of practicality to save the day.

It is prudent to ensure there are contemporaneous records confirming the termination and that the employee is both (i) made aware of and (ii) understands the specifics of the termination.

The most effective way of doing this is by ensuring a written notice of termination, clearly stating the date of termination, is provided to the employee at the same time as the verbal notice. 

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

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