An employee has been allowed to proceed with their unfair dismissal claim because an employer did not specify their end date in the letter of termination. In the recent case of Metropolitan Fire and Emergency Services Board v Garth Duggan [2017] FWCFB 4878 (Metropolitan Fire) the Full Bench of the Fair Work Commission (Commission) found that notice of dismissal must specify the date when the employment will end, or at least provide an “ascertainable date” in order to comply with the Fair Work Act 2009.

Facts

Mr Garth Duggan was a recruit firefighter with the Metropolitan Fire and Emergency Services Board (MFB), who was covered by MFB’s Enterprise Agreement. Shortly after he started with MFB, MFB became aware of conduct that Mr Duggan had engaged in prior to starting with MFB (adverse findings of professional misconduct whilst practising as an osteopath) and required Mr Duggan to address MFB’s concerns. Mr Duggan’s union then notified MFB of a dispute under the Enterprise Agreement which prevented the firefighter’s dismissal during his probationary period.

In a letter to Mr Duggan on 24 May 2016 (May Letter), MFB informed Mr Duggan of its decision to terminate his employment. The letter provided as follows:

“…I confirm that MFB has decided to terminate your employment. In making the decision to terminate your employment MFB has considered the material provided by you in your email dated 8 May 2016. Your explanations and the further material provided by you did not alleviate our concerns that you are not suitable to be an MFB firefighter….

In accordance with clause 27.1.3 of the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2010 (the Agreement), the MFB will not implement this decision until the dispute between the parties has been resolved…”

On the same date, MFB filed an application in the Commission to deal with its dispute with Mr Duggan regarding whether MFB could proceed with termination of Mr Duggan’s employment. After the dispute was found in MFB’s favour, MFB sent a letter to Mr Duggan on 10 November 2016 stating that further to the May Letter, his employment would “now terminate, effective immediately”” and that MFB would pay him one week’s pay in lieu of notice.

First instance decision

Mr Duggan made an unfair dismissal application. MFB objected to it on jurisdictional grounds on the basis that Mr Duggan had not completed a period of employment with the MFB of at least the “minimum employment period” within the meaning of section 383 of the Fair Work Act 2009 (Cth) (Act).

The Commissioner dismissed MFB’s jurisdictional objection on the grounds that the May Letter did not meet the requirements of section 117 of the Act (which requires an employer to give an employee “written notice of the day of the termination”) or common law requirements (because the date of dismissal lacked sufficient certainty). Relevantly, a person is protected from unfair dismissal if they have completed “at least the minimum employment period”. Section 383 of the Act then provides that the minimum employment period is 6 months[i] ending at the earlier of either “the time when the person is given notice of the dismissal” (section 383(a)(i)) or “immediately before the dismissal” (section 383(a)(ii)).

Appeal to the Full Bench

MFB appealed the decision on jurisdiction to the Full Bench of the Commission.

In considering MFB’s appeal of the first instance decision, the Full Bench of the Commission had to consider whether a notice of termination which does not comply with section 117 of the Act is effective to bring about the termination of the employment relationship, and secondly, can such notice constitute “notice of the dismissal” within the meaning of section 383(a)(i).

The Full Bench found:

  • If an employer terminates the employment of an employment without giving the required notice or payment in lieu of notice under a contract, modern award, enterprise agreement or section 117 of the Act, then the employee will have one or more causes of action to remedy the deficiency in notice for the employer’s unlawful/wrongful dismissal.
  • However, this does not invalidate or render void the termination of the employment relationship, as this will be a question of fact. Therefore, a notice of termination which does not comply with section 117 of the Act may be effective to bring the employment relationship to an end and may constitute “notice of the dismissal” for the purposes of the minimum employment period.
  • The “notice” required by section 383(a)(i) of the Act is of the termination of the employment relationship, not the employment contract. The “notice of the dismissal” in this section must “inform the employee of the time when the employment relationship will come to an end, or at least make that time ascertainable”. The same requirement applies for a notice of termination of a contract of employment to be effective at common law.

The Full Bench did not accept that the May Letter specified a time when the termination was to take effect, or made that time ascertainable because while it informed Mr Duggan of the decision to dismiss him, it stated that MFB would not implement the decision until after the dispute had been resolved. At that point, Mr Duggan could not have ascertained when the dispute would be resolved (if at all) and the language of the May Letter also had the effect of saying MFB would not implement the decision before the dispute was resolved. Therefore, the May Letter did not constitute “notice of the dismissal” within the meaning of section 383(a)(i) of the Act. Mr Duggan was therefore eligible to bring the unfair dismissal application.

Lessons for employers

In light of the Metropolitan Fire decision, employers may wish to include clauses in their contracts of employment that provide that:

  • The offer of employment is conditional upon the employer being satisfied with background and criminal record checks and that the employer is able to undertake such checks at any time during the employment
  • The employee is under an ongoing obligation to disclose to their employer if they are charged with any criminal offence
  • The employer can terminate immediately without notice if not satisfied with any checks or if the employee is charged with a criminal offence.

Employers should also consider whether they require employees to disclose any adverse findings by an occupational tribunal if this would make the person unsuitable for employment in a particular role.

When preparing termination letters, it is also important for employers to specify the date that the employment will come to an end. Employers should not simply state that they provide e.g. 4 weeks’ notice, but rather should also state the termination date.