This case concerned an employee who was given a written notice of dismissal during his probationary period of employment which did not specify the precise date for termination of his employment. Because of the failure by the employer to specify the precise date of termination, and because the employee’s employment continued after the end of the probationary period, the employer’s attempt to object to the employee then bringing an Unfair Dismissal Application was unsuccessful.

In Issue

  • Whether an employee had completed the minimum employment period specified by s383(a)(i) of the Fair Work Act 2009 (the Act) to enable commencement of an unfair dismissal claim.

The Background

Mr Duggan was employed by the Metropolitan Fire and Emergency Services Board (MFB) as a recruit firefighter in February 2016. During his probationary period, the MFB learnt that Mr Duggan had failed to disclose certain information at the time of being hired. This information related to his prior employment and had the potential to impact his ongoing employment with the MFB. It therefore gave him the opportunity to respond to allegations relating to this information.

As a result, the union lodged a dispute on Mr Duggan's behalf which prevented the MFB from dismissing him during his probationary period of employment. The MFB then sent a letter to Mr Duggan informing him that his employment would be terminated and that the termination would take effect after the dispute was resolved.

Mr Duggan ultimately brought an unfair dismissal claim against the MFB.

The Decision at Trial

The MFB raised a jurisdictional objection to Mr Duggan’s unfair dismissal application on the basis that he had not completed the minimum employment period required by s383 of the Act and was therefore not able to bring such an application. The Commissioner found that Mr Duggan had completed the minimum employment period and therefore dismissed the MFB’s objection.

The Issues on Appeal

The MFB appealed on the basis that the Commissioner erred in his conclusions. The issue was whether the MFB’s letter to Mr Duggan constituted a “notice of dismissal”, in accordance with s383(a)(i) of the Act, within the minimum employment period. If it did then Mr Duggan would not be able to bring an unfair dismissal claim.

The Decision on Appeal

The Commission held that, to be a notice of dismissal for purposes of s383(a)(i) of the Act, the notice must specify a date of dismissal which was particular or ascertainable. The MFD’s letter did not indicate a particular date or a date which was ascertainable in circumstances where:

  1. The letter indicated that Mr Duggan would be dismissed “when the dispute was resolved”; however
  2. Mr Duggan could not have known, or ascertained, how long it may take for such a dispute to resolve. Further, it was possible that the outcome of the dispute may have resulted in a determination that the MFB could not dismiss Mr Duggan, or that it could not dismiss until a later time.

The Commission therefore found that the MFD’s letter did not constitute a “notice of dismissal” in accordance with s383(a)(i) of the Act, and Mr Duggan was not prevented from pursuing an unfair dismissal claim.

Implications for you

The significance of this decision is that, for purposes of s383(a)(i) of the Act, a notice of dismissal must indicate either a particular time when a termination is to take effect, or a time that is ascertainable.

Metropolitan Fire and Emergency Services Board v Garth Duggan [2017] FWCFB 4878