Case notes employer gave an 'amended termination letter' to worker
The Federal Circuit and Family Court of Australia (FCFCOA) recently dealt with a case involving a worker who was issued an “amended” termination letter from his employer.
The worker also argued that the employment contract was either varied or there was a new and separate contractual entitlement that operated with the employment contract.
‘Amended’ termination letter
On 14 April 2011, an employment contract was established between the worker and the employer wherein the former was employed as a production superintendent for the company. However, around October 2020, the employer stood down the worker on full pay to investigate allegations of misconduct against him.
After the investigation concluded, the employer issued the worker with a letter of termination on 2 November 2020 as it found that the worker’s actions constituted serious misconduct.
The termination letter stated that the worker’s employment termination was “effective 2 November 2020,” and “effective immediately.”
However, on 1 December 2020, the employer issued an amended termination letter to the worker. It differed from the previous termination letter in that it deleted the third last paragraph advising the worker that he had 7 days to raise a fair treatment claim (FT Claim).
The amended termination letter had an inserted paragraph stating, “You subsequently submitted a Fair Treatment application that was reviewed, with the final decision to uphold the original decision of Termination with that effective date changed to Tuesday, 1 December 2020.”
The case noted that the employer paid the worker from 15 October 2020 until 2 December 2020. Subsequently, the employer paid the worker instead of notice of termination.
Because the employer issued an amended letter, confusion arose as to whether there was a withdrawal of the worker’s employment termination effective 2 November 2020.
The worker also claimed that the Fair Treatment System (FTS) was his safety net contractual entitlement and that the employer’s failure to comply with such was a violation of the Fair Work Act.
Court’s decision
After examining the facts of the case, the FCFCOA was satisfied that the amended termination letter was of no assistance to the worker’s case.
It noted that there was but one termination date for the employment contract of the worker and that it was 2 November 2020 and not 1 December 2020.
The Court noted that the withdrawal of a termination of an employment contract can only be effected by consent of the parties to the contract of employment.
“In the above circumstances there was no subsequent consent to a withdrawal of the termination [the worker’s] employment effective 2 November 2020, and once terminated on 2 November 2020 the Employment Contract was not capable of resuscitation,” the FCFCOA stated.
Contrary to the worker’s argument, the Court also found that there was no variation of the employment contract, and no new contract was formed.
Hence, at the time the FT Claim was made on 9 November 2020, the worker was no longer an employee of the company.
“Therefore, there was not only no ‘safety net contractual entitlement’ but also not, as at 9 November 2020, one capable of being in force as an entitlement under the FW Act,” the Court stated.
