Commission says employer's letter 'poorly drafted'
A worker recently filed a request to extend his dismissal application, alleging that he wasn’t aware of his actual termination date because the employer’s notice was “poorly drafted.”
The worker, Jonathon Matta, filed an application with the Fair Work Commission to address a dispute arising from his claim of being terminated from employment with AVJennings Holdings Pty.
The employer gave evidence that the worker’s termination took effect on 29 June 2022 when the worker was informed that his position was made redundant.
It claimed that the conversation on that date made it clear that his employment was ending immediately, although he was allowed to wrap up and do a handover over the next few days.
The employer’s HR general manager, who was present during the redundancy meeting, testified that it was the employer's intention to terminate the worker's employment by redundancy with immediate effect.
She described a confrontation during the meeting, where the worker shouted at his direct manager, and his behaviour led to his escort from the premises and the request to return company property.
The Fair Work Act requires unfair dismissal applications to be made within 21 days after the dismissal took effect.
The FWC allows a degree of leniency. It said that any application filed beyond the said period must be proven to be an “exceptional circumstance.”
Employer’s ‘confusing’ notice of termination
On the other hand, the worker said the termination became effective on 29 September 2022. In support of his case, the worker presented the following arguments:
- His termination letter indicated, "Your employment will cease effective 29 September 2022 (reflecting the 3-month notice period) on the basis of redundancy."
- The termination letter also stated that this decision meant he was "in redeployment."
- The calculation of the worker's annual leave was up to 29 September 2022.
- The worker's years of service with the employer was calculated as 1.18 years, reflecting his redundancy payment of 4 weeks.
- The worker referred to a 1 July 2022 email from the HR general manager, in which she stated that he was still an employee and expected to be responsive.
The worker argued that, based on the information provided by the employer, he believed he remained an employee until his employment's termination on 29 September 2022.
He emphasised the importance of the proper construction of a notice of termination. The worker said the communication from the employer led him to believe that he was still an employee until 29 September 2022.
The worker said the employer confirmed that his status was "in redeployment" and various communications indicating that his final employment day was set for 29 September 2022.
Additionally, the worker gave evidence of his final payslip received on 20 July 2022, which confirmed the termination date as 29 September 2022.
While he acknowledged being upset by the redundancy news, the worker denied being confrontational or aggressive towards any co-workers.
The employer said the language in the emails to communicate with the worker was not chosen well and was meant to remind the worker of his post-employment obligations to return company-issued equipment.
It also argued that the termination date on the worker's final payslip reflected the end of the three-month notice period, not the actual termination date.
Commission examines employer’s letter
The Commission found that the employer “had clearly been in discussions internally in relation to the on-going requirements and the structure of the business moving forward prior to meeting with the worker.”
“[He] received a notice of termination, which [was] poorly drafted and, understandably, confusing,” the FWC said.
“The letter provided to the [worker had] the following statements:
‘This decision means you are now in redeployment.’
‘Your employment will cease effective 29 September 2022 (reflecting a 3-month notice period) on the basis of redundancy.’
‘Given the circumstances, you will not be required to work out your notice period, so you will receive payment in lieu of notice for this period, accrued annual leave (forecast to 29 September 20220) and your retrenchment component (4 weeks).’
Regardless of the [employer’s] intention, the plain reading of the letter of termination states that [his] employment will cease effective 29 September 2022,” the FWC said.
The Commission said that the employer “may have intended to terminate the [worker’s] employment with immediate effect, the language used to communicate this to the [him] did not reflect this intention.”
Should the worker’s claim be extended?
The FWC said that “it is completely understandable that the [worker] reasonably believed his employment did not end until 29 September 2022 due to the issues regarding the clarity of the termination notice.”
“It is reasonable to conclude the [worker] did not believe he could make his application prior to his employment ending,” it added.
Thus, it considered the worker’s case as an exceptional circumstance and accepted his request for an extension.
