Termination letter sent during worker's stint in police custody
The Fair Work Commission (FWC) recently dealt with a worker’s application that she was unfairly dismissed. The employer rejected her claim, saying that the period to file had expired. In her defence, the worker argued that she had no access to her email account or her phone.
The worker, Felicity Loiterton, sought an unfair dismissal remedy against her employer, Canberra Rigging Services Pty Ltd.
The worker argued she submitted her application within the required timeframe, while the employer said the period had lapsed, and she did not have any exceptional circumstances that would allow an extension.
The worker started her position as a trainee rigger on 9 November. In an unfortunate turn of events, on 13 July 2023, she found herself at a police station and under custody at the Alexander Maconochie Centre until 18 August.
During her time in detention, the worker was not permitted to carry any device. She was unable to access her email account or her phone.
According to records, sometime around 14 July, she reached out to her father, requesting him to contact the employer and inform her manager of the circumstances preventing her from attending work.
The worker's father confirmed that he had contacted the employer to explain her situation and even made two attempts to discuss her employment status.
She was released on bail on 18 August, but she was only able to access her phone and email account a few days later.
On 20 August, she discovered that the employer had sent her a termination letter on 31 July.
HRD previously reported an unfair dismissal case involving a worker who failed to report for his rostered shifts after being in custodial detention.
The employer argued that he was not dismissed and that his employment ended at his initiative. It added that this was done by repudiation when he failed to attend his rostered shifts without notice.
The Fair Work Act requires unfair dismissal applications to be made within 21 days after the dismissal took effect.
The FWC highlighted that “the 21-day period to lodge an application for an unfair dismissal remedy could not begin to run before an employee who has been dismissed became aware that he or she had been dismissed, or at least had a reasonable opportunity to become aware of this.”
In this case, the Commission said that the evidence showed “that the worker had a ‘reasonable opportunity to become aware of her dismissal from 18 August 2023 when she was released from custody and had access to her email account.”
It said that “she was not aware of her dismissal while she was being held in custody,” despite what the employer said.
“The application was made on 8 September 2023, [and] given [the] finding that the dismissal took effect on 18 August 2023, it was made within time.”
Consequently, it referred the matter for conciliation.
