Fair Work Commission

Ayub v NSW Trains [2016] FWCFB 5500 (Hatcher VP, Wells DP, Johns C, 30 September 2016).

After a disciplinary process the applicant was advised that he would be dismissed, but that he had a right to seek a review of this decision within 14 days. In a letter on 23 November 2015 the respondent advised that if no request for a review was made within the 14-day time period, the dismissal would take effect on 7 December 2015, but if a review was requested and the outcome of the review was that the decision to dismiss was confirmed, the dismissal would be 'effective from 7 December 2015 or from the date of the outcome letter whichever one is of the latter date'.

The applicant requested a review on 7 December 2015. On 13 January 2016 the review panel determined that dismissal was the appropriate outcome. Various steps were taken to attempt to inform the applicant of the outcome including:

• By letter dated 14 January 2016 (the Outcome Letter) which confirmed the dismissal but did not advise the date of the dismissal. The letter contained the words ‘Delivered by Hand’ however the letter was never personally served on the applicant.
• By letter dated 15 January 2016 (the Dismissal Letter) but signed on 18 January 2016 which confirmed that the applicant was dismissed and that his last day on the payroll would be 14 January 2016. The Dismissal Letter and a copy of the Outcome Letter were attached to an email sent to the applicant’s email contact address (which was his wife’s email address) on 18 January 2016. The applicant did not see and open the email until 19 January 2016.

The applicant's unfair dismissal application was lodged on 8 February 2016. At first instance the Commission was satisfied that the date of dismissal was 14 January 2016 and as a result the application was lodged 4 days out of time. The Commission did not extend time for lodgment.

The applicant appealed on the basis that his application was not in fact lodged outside the 21-day period. A dismissal takes effect only when it is communicated to the employee, which occurred on 19 January 2016 when he opened and read the email attaching the Outcome Letter and the Dismissal Letter. NSW Trains submitted that its letter of 23 November 2015 constituted notice of the dismissal.

The Full Bench held that the 21-day period to lodge an application for an unfair dismissal remedy could not begin to run before an employee who has been dismissed at the initiative of the employer became aware that he or she had been dismissed, or at least had a reasonable opportunity to become aware of this. The Full Bench found that NSW Trains' email to the applicant of 18 January 2016 can only have effected the dismissal on that day. The NSW Trains letter of 23 November 2015, which stated that the dismissal would be 'effective from 7 December 2015 or from the date of the outcome letter whichever one is of the latter date', did not express the second date with sufficient certainty. The second date was not capable of being identified in advance by the applicant, and could not therefore constitute the proper provision of notice to him.

The Full Bench held that the dismissal could not have taken effect earlier than 18 January 2016, therefore the applicant's unfair dismissal application was lodged within the 21-day period prescribed by s.394(2)(a), and no extension of time under s.394(3) was required.