Employer argues worker had responsibility to always check messages
The Fair Work Commission (FWC) recently dealt with a worker’s claim that he wasn’t aware of his termination since the notice was sent to his junk email.
Thus, he said his application for unfair dismissal shouldn’t be considered “late” because he wasn’t duly informed.
The worker, Menelas Michalitsis, sought a remedy for an alleged unfair dismissal against his employer, Dig Dig Demolition Pty Ltd, where he started working in June 2022 as a truck driver.
On June 28, 2023, a significant occupational health and safety incident (the OHS incident) occurred, which reportedly involved the worker. The worker disputed his involvement in this incident.
Subsequently, on June 29, 2023, the worker ceased work due to an injury, initiating an authorised absence. During this period, the worker submitted Certificates of Capacity (COCs) to the employer covering the period from July 3, 2023, to October 7, 2023, via email to [email protected]. The employer’s office administrator routinely acknowledged receipt of these COCs.
On July 4, 2023, an external investigation into the OHS incident and a concurrent examination of a bullying complaint lodged by the worker were initiated by HR Gurus. It reported its findings regarding the OHS incident, concluding that the worker was involved and engaged in unsafe conduct.
The worker contested the findings and expressed concerns about the findings and threatened legal action if a re-evaluation was not conducted.
On September 26, 2023, the employer, through one “Mr. Lynch,” notified the worker of the outcomes of the investigation via email. The worker was given the opportunity to provide additional information regarding the OHS incident by October 4, 2023, with a "show cause" letter attached, indicating potential summary termination for gross misconduct.
The worker neither attended the show cause meeting on September 27, 2023 nor responded in writing by October 4, 2023.
On October 9, 2023, Lynch sent a termination letter via email, summarily dismissing the worker. The worker claimed that the emails dated September 26, 2023, and the termination email on October 9, 2023, were routed to his junk mail.
He said he discovered these emails on the night of October 18, 2023, after his wife organised his inbox. The worker emailed Lynch on October 19, 2023, rejecting the assessment and outcome, requesting more time for recovery, and expressing concerns about unfair dismissal.
The worker said that he "did not have a reasonable opportunity to become aware of the termination" since the termination letter and the emails "were filtered into his junk [folder]."
Meanwhile, the employer said that he "had failed to explain why he was not monitoring his emails," adding that he "had received other emails from [them] into his inbox from the domain name."
"It was unlikely that emails which [have] the same domain name would go into junk mail," the employer said.
The FWC said that the worker gave “uncontested evidence that he was not expecting correspondence regarding the investigation as he had communicated to [the office administrator that] he was unable to participate further in the investigation relating to the OHS incident.”
Additionally, it said that the worker “was off work for an injury and on medication which impacted his mental capacity.”
HRD previously reported about a request for extension of a worker’s dismissal application because she was “unaware that her application remained in her email’s drafts folder.”
In another case, an employee claimed that “malicious software stopped her from submitting her application within the required 21-day period.”
“Given the [worker] was away from work for an injury, once the [worker] had failed to show up for the show cause meeting or respond in writing, it was incumbent on the employer to take steps – such as phoning [him] – to ensure he had received the show cause letter, before terminating him by email correspondence,” the FWC said.
“If the [worker] had been alerted to the show cause letter by a phone call, even if the termination letter had gone to the junk folder, it is unlikely he would be able to sustain an argument that he had no reasonable opportunity to become aware of the termination,” it added.
“However, this did not occur in this case,” it said. Thus, the FWC said that the worker’s application was made on time since he wasn’t aware of his termination when it was sent to his email’s junk folder. Consequently, it scheduled the matter for further hearing.
