Employer use of an old email address leads to unfair dismissal claim

Employer use of an old email address leads to unfair dismissal claim.png

Employer use of an old email address leads to unfair dismissal claim

The Fair Work Commission has granted a rare exemption to a former employer to pursue an unfair dismissal claim, despite the application being lodged on 11 July 2021, some nine days after the mandatory twenty-one day time period following termination. In a very unusual set of circumstances, the Employer forwarded a letter of termination to the employee’s former email address, which he claimed to have told his manager and the HR times on several occasions was not current and not the correct address to use.

Pilbara Infrastructure Pry Ltd (the Employer) is a subsidiary of mining giant Fortescue Metals. They claimed that the employee had been uncontactable for forty days and assumed that he had abandoned his employment.

Subsequently, the Employer issued him with a letter of termination dated 16 June 2021, with immediate effect.

However, it emerged at the hearing that the letter had been sent to an old email address from when he started work 12 years earlier. On 5 July 2021, he was able to reinstate this email account and saw the termination letter for the first time. He sought legal advice, and after contacting the Industrial Commission, lodged his unfair dismissal application on 11 July 2021.

Commissioner Bruce Williams accepted the employee’s claim that he became aware of the letter on 5 July 2021. The employee refuted the claim that he had abandoned his employment and argued that he was on a period of sick leave and had sent a medical certificate to the Employer to alert them of his situation.

Significantly, Commissioner Williams noted,

“Importantly, in this case, 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 so aware. Generally, where an employee is advised of their dismissal by email, the presumption is that an employee will have a reasonable opportunity to become aware of the dismissal if the email is received in the inbox of the employee’s email address. In this case, the circumstances were that the email was received in an inbox of an email address that was no longer used by the Applicant, and this fact was known to the Respondent”.

Consequently, Commissioner Williams determined that the dismissal did not take effect on 16 June 2021 but rather took effect on 5 July 2021, being the first reasonable opportunity for the employee to become aware that his employment had been terminated. As a result, the application was lodged within the 21 days prescribed period and not out of time.

Conciliation conference dates have yet to be set in the case.

K K v Fortescue Metals Group (U2021/6059) 24 August 2021

For questions about managing performance, termination, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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