The procedural importance of effectively dismissing an employee

Background

The Applicant, Mrs Eileen Owens was employed by I-Med Radiology Ltd, the Respondent as a radiographer for more than 13 years until her dismissal in December 2021. In October 2021, the Respondent implemented a policy requiring its employees to be vaccinated against COVID-19, which applied to the Applicant as well as the Queensland Public Health Orders relating to workers in healthcare settings being required to have two doses of the vaccine by 15 December.

In October and early November, the Applicant had several email exchanges with the Respondent in relation to the legality of the Public Health Orders and the Respondent’s vaccination policy.. The Applicant also submitted a Medical Exemption Application which was rejected for not meeting the criteria.

Following this, on 13 December, the Applicant send a letter to the HR department of the Respondent making numerous assertions about the Public Health Orders, the Constitution of Australia and the efficacy of the vaccine. On 15 December a show cause meeting took place between the Applicant and Respondent and on 17 December another meeting occurred to “discuss the outcome’ from the show cause meeting. The entire transcript was submitted into evidence and can be summarised as follows:

• The Applicant was advised that “we’re not going to be able to continue with your employment”.

• After asking why she was terminated, the Respondent told the Applicant it was because she did not comply with the COVID-19 vaccination policy.

• It was left open that if the Applicant later became compliant that she could return to her role.

On 21 December, the Applicant was provided with a letter from the Respondent headed ‘Formal Meeting Outcome’ which concluded that “you are now unable to attend for and perform work because you are unable to meet the vaccination requirements under the Direction. You are therefore unable to perform the inherent requirements of your role. We note that, even if these requirements did not apply, you would be required to be vaccinated in order to comply with I-MED’s COVID-19 Vaccination Policy”. The letter therefore stated that the Applicant’s employment was terminated and her final day was 17 December.

Issue(s)

The issue arising from this termination was the actual date on which the Applicant was terminated, which is significant in the circumstances because an application for unfair dismissal must be made within 21 days after the dismissal took effect.  

The Applicant submitted that she believed it was 21 December due to the date of the ‘Formal Meeting Outcome’ letter, while the Respondent submitted that it was 17 December when she was informed of her termination in the meeting.

Decision

The Respondent’s objection that the application for unfair dismissal made by the Applicant was outside the relevant 21-day period was unsuccessful. According to the FWC, even if this was an incorrect conclusion, the ambiguity of communication by the Respondent to the Applicant about the date of dismissal would have anyway weighed in favour of a further period being granted for the application.

The Applicant was therefore entitled to proceed to have the merits of her unfair dismissal application heard, however the FWC viewed that there are many arguments by the Applicant that “will be unlikely to succeed”.

Reasoning

The FWC accepted that the Applicant was informed she was to be dismissed in the 17 December meeting. However, there was no evidence or definitive statement that her employment was to end immediately with effect from that date.

It was not until 21 December when the Applicant received the letter that the effective date of her dismissal was stated, despite still not being entirely clear. It states that the Applicant’s final day of employment was 17 December however that could not be the case unless it was plainly and unambiguously communicated to the Applicant on or before that date. Without this proper communication at the 17 December meeting, the letter could not operate retrospectively to confirm her dismissal.

Key Takeaways   
If an employee is being dismissed, the date of this dismissal must be clearly and directly advised to the employee. Practically, this is not difficult but very important to adhere to and can be achieved by stating either verbally or through written means that the employee is dismissed ‘effective today’ for example.

Whilst this can seem insignificant, the procedural consequences of not properly terminating an employee can potentially cause many unwanted issues for a business. In this case, had the Respondent effectively dismissed the employee on the intended date, then they could have avoided having to defend an unfair dismissal claim. If you require some clarification or advice on this subject, please contact:

Article prepared by:

Jim Babalis
Special Counsel
T 03 5225 5205
E jbabalis@ha.legal

Jim Rutherford
Principal Lawyer
T 03 5226 8579
E: jrutherford@ha.legal

Matthew Synoradzki
Graduate Lawyer
T 03 5226 8542
E msynoradzki@ha.legal