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Fair Work Commission’s (FWC) Full Bench decision in Mohammed Ayub v NSW Trains [2016] FWCFB 5500 (Ayub Case) is a good reminder for employers about the need for clarity with respect to termination of employment and in particular when a termination is to take effect.

Mr Ayub lodged an application for unfair dismissal and there was a dispute between the parties as to the correct date of termination of employment. This was significant in terms of determining whether or not Mr Ayub was outside the 21 day time limit under the Fair Work Act 2009 (Cth) (the Act) for lodging an unfair dismissal application and whether the FWC had jurisdiction to hear the matter.

The FWC Full Bench stated that the “general principle” is that an employer must communicate to the employee using both plain language and show by conduct that the contract is terminated. Where communication is in writing, it must have been received by the employee in order for the termination to be effective.

In the Ayub Case, Mr Ayub was sent an email by NSW Trains on 18 January 2016 to his wife’s email address. Mr Ayub was not aware of his dismissal until 19 January 2016 when he saw and opened the email. The Full Bench found that Mr Ayub’s dismissal did not take effect earlier than 18 January 2016, despite NSW Trains making the decision on 14 January 2016, and the letter being dated 14 January 2016.

Employers are reminded of the following best practice tips as a result of the Ayub Case:

• Specify how the letter is delivered to the employee (whether it is “by hand”, “by express post” etc). In the Ayub Case the letter was sent by email but was headed “delivered by hand”;

• If a termination letter is sent to an employee in the post – make sure it is registered or couriered so that there is some evidence that the employee received the letter. In the Ayub Case the FWC made it clear that mere delivery of a document to an employee’s usual address would not constitute communication of a dismissal;

• If an employer is sending the letter by email make sure a read receipt and delivery receipt is attached. It is worthwhile to make sure you have a current email address. It is also sensible to call the employee to let them know you have sent them an email;

• If an employee is unable to be found, contact the next of kin for contact details of the employee or use other methods to determine their whereabouts (social media is often helpful);

• Where an employee is dismissed with notice, the dismissal would take effect upon the last date of the notice period. This date must be clearly identified;

• Where a dismissal is payment in lieu of notice, the dismissal must be clearly communicated to the employee so that he or she at least has a reasonable chance to find out that he or she has been dismissed.

A definite termination date, clearly communicated to an employee, will be of assistance when applications are made for unfair dismissal or adverse action where a strict time limit applies.

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