By
Mike Toten
Mike Toten is a freelance writer, editor and media commentator.
When an employee claimed he hadn’t received notice of dismissal because the email went to his junk mail folder, the employer claimed he should have checked all his email files. However, the Fair Work Commission (FWC) disagreed and allowed the employee’s claim of unfair dismissal to proceed to a hearing.
In this case, the date of dismissal mattered because amending it meant that the employee’s claim was then lodged within the required period (within 21 days after dismissal).
Facts of case
The employee was a truck driver. After a “health and safety incident” involving the employee occurred at the workplace, resulting in him being injured and off work, an investigation by the employer concluded that the employee had engaged in misconduct. The employee disputed this finding.
The employer emailed a “show cause” letter to the employee but received no response. Two weeks later, it emailed another letter notifying summary dismissal for misconduct.
The employee claimed that both emails landed in his junk mail folder and he did not discover them until nine days after the second one was sent. He then emailed the employer disputing their contents and seeking further time for his recovery. He claimed that he had been denied an opportunity to respond to the employer’s allegations before being dismissed.
He lodged a claim of unfair dismissal, but more than 21 days after the date of the employer’s email notifying his dismissal.
The employer claimed that the employee should have checked all his email folders, that it had successfully sent other emails to the same address, and that the claim of unfair dismissal was lodged outside the statutory time limit.
The FWC had to decide the actual date of dismissal.
Decision
The FWC rejected the employer’s claims. It said the employer should have taken into account that the employee was at the time absent from work with injury and reduced “mental capacity” due to taking heavy medication to deal with his injury, and had told the employer he could not participate in the investigation into his conduct. Nor had he been expecting to receive the two emails.
Therefore, the employer should have taken further steps to ensure he received its communications before dismissing him, such as phoning him. If it had done so, it would have been hard for the employee to sustain an argument that he was denied an opportunity to respond.
The date of dismissal was the day he read his junk emails. Therefore, as he had been unaware of his dismissal on the date it was emailed, his claim of unfair dismissal was lodged “on time” and could proceed to a hearing.
What this means for employers
A dismissal does not take effect until an employee is aware that they have been dismissed, or has at least had a reasonable opportunity to become aware.
When giving notice of dismissal – or notifying steps in a process that might eventually lead to it – you must ensure that the employee received the notices, and be able to prove they did. This may require extra steps and using more than one means of communication. Otherwise, an employee may be able to claim (as in this case) that they did not receive the notices, possibly leading to a claim of unfair dismissal.
Read the judgment
Menelas Michalitsis v Dig Dig Demolition Pty Ltd - [2023] FWC 3430 | Fair Work Commission
