Employer didn't want to fire worker while he had company car
The Fair Work Commission (FWC) recently dealt with a dispute between an employer and a worker who didn’t agree on the latter’s dismissal date.
Terminating anyone’s employment is a difficult thing to do, even for an experienced HR leader. It’s a very complex process, and there are a lot of procedural aspects that need to be followed before making a move.
One of the most important ones to consider is timing. The Fair Work Act requires that a dismissal date must be certain and unambiguous since it would be relevant to the allowable period wherein the worker can file an application to question it.
The employer, Duo Trading Pty Ltd, argued that the dismissal took effect on 22 September 2023. On the other hand, the worker, Leigh Wallace, said that the dismissal took effect on 25 September 2023. The parties made submissions on this matter during the hearing on 20 November 2023.
The FWC found that there was a letter of termination of employment sent to the worker. which was dated 22 September 2023.
According to records, the first paragraph mentioned a different date:
“Dear Leigh, as per our conversation earlier today over the phone, we have decided to terminate your employment with Duo Trading Pty Ltd, effective 25 September.”
The FWC said that it “seems abundantly clear that the dismissal took effect on 25 September, notwithstanding the reasons that the [employer] has articulated at the hearing for providing that later date of 25 September.”
HRD previously reported about a worker's dismissal claim against an employer, alleging that he received an “ambiguous” termination letter, which made him doubt his true dismissal date.
In another case, the FWC dealt with the case of a worker who claimed unfair dismissal because he received an email 24 hours before his termination date.
The employer said that the “key reason” for putting a later date (25 September) in the termination letter was because it “wanted to ensure that the [worker] remained an employee while he maintained possession of the company vehicle.”
However, the FWC disagreed with the employer’s position, adding that it “was clearly communicated to the [worker] that there was an effective date of 25 September for his employment to end.”
Thus, the FWC resolved the dispute in favour of the worker.
