By Katherine Argyriou

As a result of the COVID-19 pandemic, many employers are choosing to conduct meetings and consultations with employees online through videoconferences and emails. In light of this, the Fair Work Commission (‘FWC’) has recently emphasised the importance of certain decisions and formalities being conducted face to face.

In a recent case heard by the FWC, an employee claimed she never received an emailed termination letter, and subsequently was not made aware of her termination until a later date.

Her employer, Mudgee Golf Club, had conducted a disciplinary meeting with her on 7 February 2020, followed by a show-cause letter dated 10 February 2020. The letter required a response from the employee by 5 PM the following day. After not receiving a response, the club president emailed the employee a termination letter stating she had been summarily dismissed for serious misconduct. The email was sent from the club president’s personal account on 11 February 2020.

After receiving a seemingly random large sum of money from her employer on 19 February 2020, the employee contacted the club’s payroll manager to question the payment. The payroll manager notified her that she had been terminated, to which the employee replied, “it would have been nice to have been told.”The employee affirmed that she had not had any contact with the club since her meeting on 7 February 2020.

The employee subsequently filed an application for unfair dismissal on 6 March 2020 on the basis that her employment had been terminated when she received a Centrelink separation certificate on 26 February 2020.

However, the employer objected to the employee’s unfair dismissal application on the jurisdictional basis that she did not file it within the 21-day limit, arguing that her employment had been terminated on 11 February 2020 when the termination letter was emailed to her.

It was then revealed in the employee’s evidence that, prior to 26 February 2020, she had never received this termination email or any other correspondence notifying her that her employment had been terminated.

Commissioner Cambridge of the FWC coined the situation an “unusual dilemma,” and acknowledged that “there is no discernible reason why the emails sent by [the employer] on 10 and 11 February did not appear in the inbox of the [employee’s] home email address.”

The Commissioner boiled the situation down to being an “unexplained vagary of cyberspace,” before finding that the date of termination was the date the termination payment was made: 19 February 2020, “which coincided with the time at which [she] was advised of her dismissal by [the payroll manager].”

Consequently, the FWC rejected the employer’s jurisdictional objection and affirmed that the employee’s claim was made within the 21-day time limit such that it could proceed to a hearing.

As a warning to employers, Commissioner Cambridge outlined that “as the circumstances in this instance have revealed, communication of the advice of dismissal by electronic means such as email or text message, should generally be avoided.”

This case is a timely reminder to employers that formal discussions, consultations and decisions should, where practicable to do so, be conducted and finalised face to face (including by videoconference where physical meetings are difficult). When an employer needs to send written correspondence by electronic means, they should keep records/copies of the communication, accompany the communication with a phone call or other notification, setup ‘read receipts’ and/or consider requiring the employee to respond, to manually confirm they received the correspondence.

For more information or advice on employer obligations surrounding evidence and notification requirements, termination or any other HR issue, please contact the HR Assured Telephone Advisory Service.

Katherine Argyriou is a passionate Workplace Relations Consultant at FCB Group and HR Assured Australia. Katherine provides in-depth advice on a range of employment relations matters with a particular interest in the employee life cycle

Michelle Rawson v Mudgee Golf Club Ltd [2020] FWC 4813 (11 September 2020)