When does a dismissal take effect?

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adjournment

To end proceedings or to suspend them to another time or place.

appeal

To request that a decision of a single member of the Commission be reviewed by a Full Bench to determine if the decision made is consistent with the Fair Work Act 2009. An appeal can only be made on the grounds that an error of law or fact has been made. A person must seek the permission of the Commission to lodge an appeal by lodging a Form F7—Notice of Appeal.

bullying at work

Bullying at work, as defined by the Fair Work Act 2009, occurs when:

a person or a group of people behaves unreasonably and repeatedly towards a worker or a group of workers while at work, and
the behaviour creates a risk to health and safety.

Bullying does not include reasonable management action carried out in a reasonable manner.

bullying policy

A formal procedure outlining the processes used, including disciplinary measures, to resolve bullying in the workplace. A policy would normally include definitions of bullying, a worker's responsibility in relation to bullying and the step by step process that should be adopted when bullying is reported.

code of conduct

A set of rules and responsibilities that govern an organisation. A code of conduct generally sets out appropriate and inappropriate behaviour of employees within an organisation.

Commission

Abbreviation for Fair Work Commission.

Commonwealth

Refers to the Commonwealth government or an Australian territory.

conference

A private proceeding conducted by a Fair Work Commission Member.

constitutionally covered business

A constitutionally covered business is:

a proprietary limited company
a foreign corporation
a trading or financial corporation formed within the limits of the Commonwealth
the Commonwealth
the Commonwealth authority
a body corporate incorporated in a territory
a business or organisation conducted principally in a territory or Commonwealth place.

It does not include sole traders, partnerships, some state government employees, corporations whose main activity is not trading or financial.

decision

A judgment or conclusion reached after considering the facts and law. A decision in relation to a matter before the Commission can include the names of the parties and will generally outline the basis for the application, comment on the evidence provided and include the judgment of the Commission in relation to the matter. A decision can be made by a single member or a Full Bench of the Commission. It is legally enforceable.

directions

Instructions given to the parties by the Commission that set out a timetable in accordance with which they must file in the Commission and serve on each other an outline of submissions, witness statements and any supporting documents.

evidence

Information which tends to prove or disprove the existence of particular belief, fact or proposition. Certain evidence may or may not be accepted by the Commission, however the Commission is not bound the normal rules of evidence. Evidence is usually contained within or attached to a witness statement or provided verbally by a witness in a hearing.

Fair Work Act 2009

The principal Commonwealth law governing Australia's workplace relations system. Go to the Fair Work Act 2009.

Fair Work Commission

Australia's independent, national workplace relations tribunal, established under the Fair Work Act 2009, from July 2009 to December 2012. Fair Work Australia assumed the functions of the Australian Industrial Relations Commission, and the Australian Fair Pay Commission and the agreement-making function of the Workplace Authority. Fair Work Australia was renamed the Fair Work Commission on 1 January 2013.

Full Bench

A Full Bench of the Fair Work Commission is convened by the Fair Work Commission President and comprises at least three Fair Work Commission Members, one of whom must be a Deputy President. Full Benches are convened to hear appeals, matters of significant national interest and various other matters specifically provided for in the Fair Work Act 2009.

harassment

Unwanted and offensive conduct or behaviour by a person or persons directed towards another person based on an attribute such as a person’s age, gender, race, religion or a disability. Harassment can be physical or psychological.

hearing

A public proceeding conducted by a Fair Work Commission Member. A hearing is generally more formal than a conference, and may be held if the matter can't be resolved at mediation, conciliation or conference.

jurisdiction

The scope of the Commission’s power and what the Commission can and cannot do. The power of the Commission to deal with matters is contained in legislation. The Commission can only deal with matters for which it has been given power by the Commonwealth Parliament.

jurisdictional objection

An objection to an application on the basis that the Fair Work Commission does not have jurisdiction to deal with the matter. A jurisdictional objection is not simply that the respondent thinks the applicant's case has no merit.

matter

A case or legal proceeding before the Commission.

mediation

An informal, confidential and voluntary process. It is one of the processes used by the Commission to facilitate the resolution of a grievance or a dispute between parties by helping them reach an agreement.

Member

A person appointed by the Governor-General to decide matters at the Commission. A Member may be the President, a Vice President, a Deputy President or a Commissioner.

non-constitutional corporation

An entity that is not a constitutional corporation. The following are not constitutional corporations:

sole traders
partnerships
some state government bodies
corporations whose activities do not include significant trading or financial functions (e.g. some charities).

order

An order is a ruling made by a Fair Work Commission Member after he or she hears your case. Once an order has been made, anyone bound by that order must follow it.

outcome

The end result of an application made to the Commission.

outline of submissions

A written document that clearly sets out the key elements of a case. All facts, information and evidence that you wish to bring to the attention of the Commission should be included in your outline of submissions.

partnership

An organisation in which two or more persons carry on a business together and it is not a constitutional corporation as defined.

party

A person or organisation involved in a matter before the Commission. A party is generally known as either an applicant or a respondent.

principal

A person or business that has entered into a contract for services with an independent contractor.

private enterprise

A business owned and operated by private individuals for profit, instead of by a government or its agencies.

procedural fairness

When persons are treated equally or fairly before the law (also known as due process). For example, procedural fairness occurs when both parties to a dispute have an opportunity to be heard or to defend themselves.

pty ltd

A proprietary limited company. A constitutionally covered business.

reasonable management action

In relation to an anti-bullying application, reasonable management action is the action or behaviour of management that is considered to be carried out in a reasonable manner. Reasonable management action does not constitute workplace bullying.

Reasonable management action may include:

performance management processes
disciplinary action for misconduct
informing a worker about unsatisfactory work performance or inappropriate work behaviour
asking a worker to perform reasonable duties in keeping with their job, and
maintaining reasonable workplace goals and standards.

In each of these examples, if they are not carried out in a reasonable manner, then they could still be considered bullying.

Rules

The Fair Work Commission Rules 2013.

service/to serve

A requirement to send a copy of a document (and all supporting documents) to another party or their representative, usually within a specified period. A person’s obligation to serve documents can be met in a number of ways. The acceptable ways in which a document can be served are listed in Parts 7 and 8 of the Fair Work Commissions Rules 2013.

sole trader

An organisation in which one person is responsible for the business.

WHS

Abbreviation for work health and safety.

WHS state or territory regulator

A body established by a state or territory government which regulates WHS laws in a particular state or territory. To find contact details for the regulator in your state or territory, go to the Enquiries page.

witness statement

A person who gives evidence in relation to something they saw, heard or experienced. A witness is required to take oath or affirmation before giving evidence at a formal hearing. The witness will be examined by the party that called them and may be cross examined by the opposing party to test their evidence.

worker

In relation to an anti-bullying application, the definition of a worker is drawn from the Work Health and Safety Act 2011. A worker can include:

an employee
a contractor or subcontractor
a person employed by a labour hire company who is working at a particular business or organisation
an outworker
an apprentice or a trainee
a work experience student
a volunteer.

Only people who are considered to be workers may apply for an order to stop bullying at work.

workplace

A place where a person performs work.

workplace bullying

See bullying at work.

Overview

A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.^[1] A dismissal can be communicated orally.^[2]

Where the communication is in writing only, the communication must be received by the employee in order for the termination to be effective.^[3]

A notice of termination may still be valid even if it is stated to take effect subject to a condition, such as a future date, provided that:

the notice clearly expresses the condition
the condition has been satisfied, and
the employee is in a position to know that the condition has been satisfied.^[4]

Where payment in lieu of notice is made the dismissal usually takes effect immediately.^[5]

Example

If an employee is given 4 weeks' notice that they will be dismissed, and they work through the 4 week period – then the date that the dismissal takes effect will generally be at the end of that 4 week notice period.

HOWEVER, if an employee receives 4 weeks' pay in advance in lieu (instead) of working and is NOT required to work through the 4 week notice period – then the date that the dismissal takes effect will generally be the last day worked unless the employer specifies a different date of dismissal.

Note: The example above provides a general guide, however this may not always be the case – issues such as the terms of a contract may affect the date a dismissal takes effect.^[6]

Premature applications

In Mihajlovic v Lifeline Macarthur the Full Bench of the Fair Work Commission found that an application which is filed prematurely should be considered to be an application which was not made in accordance with s.394(1) of the Fair Work Act 2009. However, that an application is premature does not make the application invalid and of no effect, because the Commission has discretion under the Fair Work Act to:

dismiss a premature application under s.587(1)(a) on its own initiative or upon application, or
to waive any irregularity in the form or manner in which an application is made under s.586(b), which can include the premature filing of an application.^[7]

Related information

Case example

Dismissal NOT clearly communicated

Ayub v NSW Trains

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.

References

^[1] Burns v Aboriginal Legal Service of Western Australia (Inc), Print T3496 (AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) at para. 24.

^[2] Plaksa v Rail Corporation NSW [2007] AIRC 333 (Cartwright SDP, 26 April 2007) at para. 8; citing Barolo v Centra Hotel Melbourne, Print Q9605 (AIRC, Whelan C, 10 December 1998).

^[3] Ayub v NSW Trains [2016] FWCFB 5500 (Hatcher VP, Wells DP, Johns C, 30 September 2016) at para. 17.

^[4] ibid., at para. 18.

^[5] Siagian v Sanel Pty Limited [1994] IRCA 2 (27 May 1994), [(1994) 122 ALR 333 at p. 355].

^[6] See for example Mihajlovic v Lifeline Macarthur [2013] FWC 9804 (Hatcher VP, 16 December 2013); Akee v Link-Up (Queensland) Aboriginal Corporation [2015] FWC 555 (Hatcher VP, 9 February 2015).

^[7] Mihajlovic v Lifeline Macarthur [2014] FWCFB 1070 (Ross J, Hatcher VP, Bull C, 5 March 2014) at para. 42.

Updated time

Last updated

15 January 2020

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