No shortcuts when terminating

In a recent Fair Work Commission (FWC) decision (Steve Petkovski v M J Luff Pty Ltd T/A Border Express [2021] FWC 5936), the FWC found that a termination letter was sent to an employee’s defunct email address did not constitute a reasonable means of communicating the dismissal. Instead, the dismissal was effective 5 days later when the termination letter was received by registered post.

Consequently, the FWC dismissed the employer’s jurisdictional objection and found that the employee was allowed to challenge his dismissal as his claim was still within the statutory timeframe (21 days).

How do you adequately communicate termination?

Informing the employee in person and providing confirmatory correspondence at the time will be the best means of communicating the dismissal. If this is not appropriate (ie. covid restrictions, violent employee, etc.), arrange to have this discussion by video or teleconferencing and still follow up with confirmatory correspondence.

When a termination letter is used, we recommend going the ‘extra mile’. This means making it as easy as possible for your employee to receive the notice of dismissal. You should follow these steps:

1. send the termination letter to the employee’s email address and use a ‘sent’ receipt;

2. send a physical letter by courier (registered post) to the employee’s address;

3. follow up by sending a text message reminding the employee to check his/her email and to expect a physical letter; and

4. obtain confirmation (verbal/written) if possible that the employee received the termination letter.

Taking a ‘shortcut’ in the process can adversely affect the ‘fairness’ of the entire termination and ultimately create unnecessary risks (unfair dismissal claims) for your organisation. Instead, employers should remain transparent and helpful throughout the process.

Edge Legal

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