Fair Work determines if worker completed the minimum employment period
A worker recently filed a dismissal claim against an employer, alleging that he received an “ambiguous” termination letter which made him doubt his true dismissal date.
On 26 July 2023, the worker filed an unfair dismissal remedy in the Fair Work Commission (FWC) against Victorian Elevators Pty Ltd, trading as Forte Lift Services.
His employment started on 24 January 2023, and the dispute arose regarding the actual date of his dismissal. The employer said he was dismissed on 21 July, which it said meant that he had not completed the required six-month period to file an unfair dismissal claim. On the other hand, the worker said his dismissal date was 24 July.
The worker was initially engaged by the employer for debt recovery services starting on 24 January. On 21 July, the worker and the employer’s director met to discuss his employment.
According to records, the circumstances which led to the said meeting were disputed. The employer said it summoned him, while the latter said he requested the meeting to discuss taking leave on 28 July.
During this meeting, the employer informed the worker verbally that he had not satisfactorily completed his six-month probation period and was therefore terminated, effective immediately.
‘Ambiguous’ termination letter?
According to the employer, the worker left the workplace around 3:00 p.m., taking his personal belongings. The employer also presented an email from the worker, sent later on the same day, titled "Termination of Probation on 21/7/23 at 3:30 p.m. at Forte Lifts," which contained his account of the meeting.
Meanwhile, the worker disagreed with the employer’s version of events and said that he was informed during the meeting that his work performance, particularly regarding reconciliations and understanding construction work, were probationary concerns.
He said the termination letter was “ambiguous” on whether he had completed the minimum employment period or not since it stated that the worker had "worked [for them] for 6 months."
Meanwhile, the employer said it used the phrase "worked here for 6 months" in a general sense to assist the worker in estimating his service with the employer for future employment. It's important to note that the worker had no plans to perform any further work following the meeting.
HRD previously reported about an employee’s dismissal application, alleging her case should be accommodated because her termination date was unclear. On the other hand, the employer claimed that she was dismissed when she resigned from work after she emailed her team members, but the employee said it happened much later than that.
In another case, a general manager sued his employer over his "unclear" dismissal date. Meanwhile, the company said he could have "sought clarification, but did not do so."
Employer’s letter was not ambiguous to cause confusion
The FWC found that the worker started his employment on 24 January. The minimum employment period of six months would have applied from 23 July onwards.
“Although the worker made numerous and, at times, contradictory submissions, he unambiguously stated that on 21 July he had been clearly told that he was terminated and was asked to leave the premises. This date of termination is agreed to by the employer.”
Additionally, it said that the “termination letter given to the [worker] on 24 July 2023, which referred to [him] as having worked for the employer for six months, [did not] alter the understanding that the employment relationship between the [parties] ceased on 21 July.”
Thus, it said the worker was not protected from unfair dismissal because he did not meet the minimum employment period. It then dismissed his application.