Worker learns of termination after returning from two-month trip abroad
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a worker who argued she did not immediately become aware of her employment termination because of not having an internet connection.
In its defence, the employer argued that the worker’s unfair dismissal application was out of time and no additional time should be granted.
Unaware of dismissal?
Before her dismissal, the worker commenced employment with the company on a casual basis in August 2017.
On 15 March 2023, the worker traveled to Malaysia to assist her ill grandmother and only returned to Australia around May 2023.
The worker noted that her grandmother lives in a remote location in Malaysia and does not have an internet connection in her home or the nearby areas.
“While she was in Malaysia the [worker] did not have access to the internet either at her grandmother’s house or elsewhere and was unable to, and did not, access her email,” the case stated.
When the worker returned to Australia, the worker logged onto the company’s rostering system to see when she would next be rostered to work.
However, to her surprise, the worker did not have access to the company’s system. Hence, she checked her emails and discovered that she was dismissed from work.
The email was dated 9 May 2023 wherein the employer advised the worker that her employment had been terminated from that date due to abandonment of her employment.
The worker argued that she was unaware that she had been dismissed until she read the email around 25-26 May 2023.
After the worker’s employment was terminated, the worker said that she was stressed about it and was uncertain of what to do.
“Her evidence was imprecise and uncertain about her actions from this date, but she said that it took her some time to act, perhaps 1-3 days; and [the worker] made an unfair dismissal application on 31 May 2023,” the FWC stated.
Despite such claims, the employer argued that because her application was allegedly not made within the 21-day statutory period, no extension of time should be granted to the worker.
FWC’s decision on dismissal
In deciding the case, the Commission noted that for a dismissal to take effect, the employee must be aware that they have been dismissed or have had a reasonable opportunity to become aware.
“Whether an employee has had a reasonable opportunity to become aware will necessarily turn on all the facts of the matter,” the FWC stated.
In the present case, the Commission noted that the worker only became aware that she had been dismissed on or around 25 May 2023 –the time when she returned to Australia and read the mail of 9 May 2023 because of having no wifi connection for some time.
“In the unusual circumstances of this matter, I find that the reasonable opportunity for the [worker] to become aware of the dismissal email started when she returned to Australia on or around 25 May 2023,” the Commission stated. “I therefore find that the dismissal only took effect on or around 25 May 2023.”
Ultimately, the Commission found that the unfair dismissal application made on 31 May 2023 was clearly within 21 days after the dismissal took effect. Hence, exceptional circumstances need not be found.
