When do administrative actions become dismissal notices? FWC explains
The Fair Work Commission (FWC) recently dealt with a case where a final payslip became the centre of a dismissal dispute.
The employer's act of sending a final payslip in November 2024 was interpreted differently by both parties - the worker saw it as notice of dismissal, while the employer claimed it merely acknowledged an earlier abandonment of employment.
The case raised questions about how administrative actions, like sending a final payslip, can affect the timing of dismissal claims under the Fair Work Act 2009.
The worker filed an unfair dismissal application after receiving his final payslip, arguing this document signalled the end of his employment.
On December 12, 2024, the worker lodged an unfair dismissal remedy application with the Fair Work Commission. He identified November 20, 2024, as his dismissal date, which was when he received his final payslip by email.
The Commission noted: "[The worker] received his final payslip by email. He replied to that email to confirm that he had received his final payslip and asked for an opportunity for him or someone else to clear out his locker."
The employer presented a different interpretation of events. They stated no formal dismissal took place, arguing instead that the worker had abandoned his employment around September 9, 2024 - their last contact about his return from medical leave.
The Commission recorded their position: "[The employer] says that they did not dismiss [the worker] but that he abandoned his employment around Monday 9 September 2024, when they last heard from him about returning to work after a period of medical leave. [The employer] says they finally accepted that abandonment in November 2024 by simply emailing [the worker] his final pay slip."
Using November 20 as the reference date, the Commission explained: "Taking the latest date of 20 November 2024 as the date the dismissal (if any) took effect, the statutory time period of 21 days ended at midnight on Wednesday 11 December 2024. [The worker's] application was filed one day after the end of the statutory time period."
The Fair Work Act 2009 requires workers to file unfair dismissal applications within 21 days of their dismissal.
For this application to proceed outside this timeframe, the Commission needed to find exceptional circumstances that would justify extending the filing period.
The worker explained his late filing by stating he believed he had 30 days to submit his claim. The Commission recorded: "[The worker] says that the reason for the delay was his lack of knowledge about the time limit. He thought it was 30 days. But when he 'did some research', he learned that he only had 21 days."
The Commission needed to assess whether this misunderstanding, along with other factors, constituted exceptional circumstances under the Fair Work Act 2009.
When asked about the delay after discovering the correct timeframe, the worker said he needed time to gather information and documents. However, the Commission observed: "all [the worker] filed was a completed online lodgement and his separation certificate."
The worker also cited stress and anxiety about the process, but provided no medical evidence to support these claims. The Commission addressed this, stating:
"I accept that employment ending and challenging that end can be stressful and anxiety inducing, as can be participating in the Commission's processes. But I do not have any evidence about how that stress or anxiety rendered [the worker] incapable of filing his application."
Their assessment had to consider whether these circumstances qualified as "out of the ordinary, unusual, special or uncommon" while not necessarily being "unique, unprecedented or very rare."
In reaching its decision, the Commission examined all factors, stating: "I have considered the arguments made and the information and evidence provided by [the worker]. I have considered the factors individually and together... But there are no factors that weigh in favour of a finding of exceptional circumstances."
The Commission referenced previous similar cases: "There are many cases about ignorance of the time limit. Without more, this cannot substantiate an exceptional circumstance."
As a result, the Commission ordered that the worker's application for an unfair dismissal remedy be dismissed, as they could not allow an extension of time for the late filing.
