https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc6770.htm

Important learnings from this decision

  • Do NOT pay notice period for matters involving serious misconduct.
  • End the employment on a specified day. In the case of serious misconduct, it should occur “with immediate effect”.
  • Ensure that all ancillary documentation contains correct and consistent information (including separation certificates).
  • If possible, ensure that all payments due to the dismissed employee are paid within 24 hours. Whilst not a legal requirement it puts a “full-stop” on the employment. Or alternately, specify the termination and contract of employment end on [date] and that “you will receive all your entitlements in the next pay run…”
  • Whilst it may be altruistic to support an employee with continued EAP; this is an employer/employee arrangement and any employer support should cease on the date of dismissal.

And as is my policy, ring me before exacting a dismissal. The phone is free, but the discussion might save you $thousands.

Summary

This matter involves a very large retailer who dismissed an employee for serious misconduct and paid him four weeks’ pay in lieu of notice. Unfortunately, the employer failed to finalise all employment matters in a timely manner.

This decision was not argued on whether the dismissal was fair or not, but was a “jurisdictional” matter that the application was made outside of the 21 day time limit for lodgement.

The Commissioner (in summary) found that the applicant was corresponding via email with the respondent in relation to:

  • Final payment details (which remained outstanding for a couple of weeks); and
  • The respondent had provided its Employee Assistance Program for four weeks from the date of the dismissal.

Date implied?

Whilst the Commissioner agreed that that the termination date was “implied” that it occurred from the date of termination meeting/termination letter, the termination date was not expressed clearly and led to uncertainty.

As the Commissioner put it:

“Unfortunately [the respondent’s] responses did not clearly answer the issue [the applicant] was seeking clarification on, namely when his notice period began and ended.

“Having considered all of the material, I am inclined to accept that despite the termination letter not explicitly saying that [the applicant’s] termination was intended to have immediate effect, the words in the fourth paragraph of the letter do have that effect, meaning his application was filed out of time.

“However I am satisfied on the facts of this case the reason for delay does give rise to exceptional circumstances because the letter could have been more carefully crafted, the confusion on the part of [the applicant]…and his attempts to seek clarity from [the respondent] could have been dealt with more clearly…

“Further, the Respondent has not attempted to provide an explanation as to why it took 14 days to process the payment of notice pay given it says it terminated [the applicant]…The Enterprise Agreement referred to in the Form F3 provides that wages are paid weekly. The delay in the processing of payment would only have served to further confuse [the applicant] about whether he remained in employment or not.

“All of those things taken together led to [the applicant] proceeding on the basis that when he filed his application…he believed it was within time when it was not. However the facts leading to the delay are not regularly, routinely or normally encountered, and are out of the ordinary, or unusual or special or uncommon”. [My emphasis].

In another decision: wrong date on separation certificate

https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc6706.htm

Along the same lines, however in this matter both the employer and employee were clear (verbally) on when the dismissal took effect. However, following a visit to Centrelink, the applicant had need to request a Separation Certificate. Unfortunately (for the employer), the date at the conclusion of the notice period was stated, giving rise to the starting point for the 21-day timeclock.

This was despite his honour finding that there was not ambiguity between the applicant and respondent when the termination took effect.

PS: The applicant was self-represented, and the respondent had a large legal firm as representation.