Case underscores importance of 'clear and unambiguous terms' in notice
The Fair Work Commission (FWC) recently dealt with a case involving a dispute over the effective date of a worker's dismissal and its impact on the timeliness of an unfair dismissal application.
The decision sheds light on the importance of clear communication and the interpretation of dismissal notices in employment law.
Adam Kelly was previously employed by National Roofcare Pty Ltd as a roof plumber. He later transitioned into a managerial role, becoming the ACT and Southern NSW State Coordinator.
In July 2023, Kelly suffered a workplace injury, and his workers' compensation claim was initially accepted. However, following a subsequent medical examination, the insurer advised Kelly that the injury was considered pre-existing, and the claim was rejected.
Dismissal email
On 1 November 2023, while Kelly was on a period of extended leave, he received an email from his employer stating:
"Hi Adam, With regards to your recent Work Cover letter from GIO, we are confirming that you are unable to work in the capacity of a Roof Plumber moving forward. Whilst we have explored other opportunities (including WA), it is not possible for you to gain access to roof environments due to insurance issues. As at Dec 1, it's the intention of National RoofCare to pay out your entitlements, including annual leave. We thank you for your services to date and we wish you the very best in the future."
On 15 December 2023, Kelly filed an unfair dismissal application. However, the employer raised a jurisdictional objection, asserting that Kelly's dismissal had taken effect on 1 November 2023 and that the application was made outside the 21-day period.
Interpreting the dismissal email
In its decision, the FWC had to determine the proper meaning and effect of the dismissal email to establish the date Kelly's dismissal took effect.
Kelly contended that the dismissal took effect on 1 December 2023, relying on legal precedents that emphasize the need for clear and unambiguous communication of termination.
The FWC found that while the email showed an intention to end the employment relationship, it did not indicate that the termination was intended to take immediate effect on 1 November 2023.
It said that the email made no express reference to payment for the notice period or that Kelly was released from further duty and attendance at the workplace.
Effective date of dismissal
The FWC determined that the email effectively provided a period of notice of one calendar month to Kelly, with the employment relationship ending on 1 December 2023. The FWC stated:
"The email is in my view, effectively providing a period of notice of one calendar month to the Applicant. It does, on a proper reading of its text and construed objectively, give notice to the Applicant that the employment relationship is coming to an end at a future date. I am of the view that the future date is 1 December 2023 and that a reasonable reader in the position of the Applicant would have read it that way."
The FWC also noted that Kelly received his accrued entitlements on 7 December 2023 and an amount for "Wages paid on WorkCover" for a pay period ending on 1 December 2023, which was consistent with the view that the relationship ended on 1 December 2023.
Thus, the FWC concluded that Kelly's dismissal took effect on 1 December 2023, and the employer's contention that the application was out of time was rejected. As a result, the issue of whether an extension of time should be granted did not arise.
