The big question about terminating incarcerated employees remains unanswered after FWC ruling
A Coles manager fired while in jail lost her unfair dismissal case, leaving employers without clear answers on terminating incarcerated employees.
Brooke Jones was a department manager at Coles Supermarkets in Casuarina when she was jailed on August 2, 2025, for charges that had nothing to do with her work. While she sat in a cell unable to check her email, her employer was trying to reach her about ending her job.
On August 11, 2025, Coles sent Jones an email saying her incarceration meant she couldn't fulfill her employment contract and the company was considering ending it. She had until August 22, 2025, to respond. But Jones never saw the message.
About a week later, the store manager handed a copy of the email to Jones's father, who also worked at the same Coles store. He called his daughter, who then asked her lawyer to respond. The lawyer sent a letter dated August 19, 2025, asking Coles to wait until at least September 24, 2025, when Jones's next court date was scheduled. The letter explained she was fighting the charges and they were unrelated to her employment.
Coles says that letter never arrived. On August 26, 2025, the company sent another email to Jones saying her employment had ended because she missed the deadline to respond.
Jones learned she'd been fired on September 4, 2025, the day she was released from jail, when her father broke the news. Two days later, she finally checked her email and found the termination letter buried in her spam folder.
She filed an unfair dismissal claim on September 30, 2025, five days past the 21-day deadline. When her case came before Deputy President Saunders on January 13, 2026, it was dismissed not because she deserved to be fired, but because she filed too late.
Jones argued she was overwhelmed after getting out of jail, juggling court dates for her criminal case, handling money problems, and didn't know about the 21-day rule. The commission wasn't convinced. Deputy President Saunders wrote that "ignorance of the law is not an acceptable or reasonable explanation for a delay, nor does it establish an exceptional circumstance."
The ruling determined that Jones's dismissal took effect on September 4, 2025, when her father told her about the termination and she could have checked her email to confirm it, even though she didn't actually read the message until two days later.
Here's what matters for HR: the big question never got answered. Deputy President Saunders acknowledged that "whether an employee's incarceration frustrates their employment contract is a question of fact and will depend on their likely length of absence from work and the need (or otherwise) to obtain a temporary or permanent replacement."
A full hearing would have examined whether Coles actually needed to replace Jones in her full-time department manager role and whether the company had enough information about how long she'd be locked up before pulling the plug on August 26, 2025. The mystery of the missing lawyer letter would have been scrutinized too, but there wasn't enough evidence presented to resolve it.
The case leaves HR departments in murky territory when employees face incarceration, particularly when normal communication breaks down during critical decisions.
