When does dismissal of a FIFO employee take effect?

In?Brown v Wesley Engineering Pty Ltd [2023] FWC 960, when determining whether a general protections dismissal application was made within the 21 day period prescribed in?s 366(1)(a)?of the Fair Work Act 2009 (Cth) (FW Act), Schneider C of the Fair Work Commission (FWC) held that the dismissal took effect when the fly-in, fly-out (FIFO) employee was notified of it by his employer’s supervisor.

Background

The employee/applicant submitted that, on 29 August 2022, he went to the airport to catch his scheduled flight to site. While completing his COVID-19 pre-flight test, he was advised by the nurse present that he was not on the list to fly, which he confirmed with the airline.

After unsuccessfully attempting to contact the employer’s/respondent’s Operations Manager, the applicant contacted the employer’s supervisor, who advised him that his employment had been terminated. The applicant contended that this was the first time that he had found out his employment had been terminated.

The evidence

The applicant offered corroborating evidence of his assertion that the dismissal took place on 29 August 2022, namely:

• a record of his Uber journey to the airport on 29 August 2022;
• telephone records of his attempts to call the Operations Manager and supervisor on 29 August 2022;
• a copy of his roster confirming that he was previously booked to fly on 29 August 2022; and
• copies of messages between him and his partner on the morning of 29 August 2022 that he had just ‘found out’ that his employment had been terminated.

The applicant asserted that it was illogical for him to have travelled to the airport on the morning of 29 August 2022, to fly to site, if he was aware that his employment had already been terminated.

The respondent asserted that the dismissal took place on 18 August 2022, when the Operations Manager terminated the applicant’s employment. It objected to the general protections dismissal application contending that it was not made within the time prescribed in?s 366(1)(a)?of the FW Act (that is, within 21 days after the dismissal took effect). The respondent offered no evidence in support of its contention.

The decision

Perhaps unsurprisingly given the weight of the evidence offered by the applicant compared to none by the respondent, the Commission found in favour of the applicant and held that the dismissal took effect on 29 August 2022. Consequently, the Commission held that the general protections dismissal application had been made within the prescribed 21-day period and dismissed the respondent’s objection to it.

Takeaways

A dismissal requires clear communication of that fact by the employer to the employee. This is so for FIFO employees as it is for employees generally.

Practice tips

To clearly identify when a dismissal takes effect, an employer should ensure that there is a written record made and retained of the date of communication to the employee of that fact, which record can then be relied upon to object, if necessary, to an application challenging the dismissal if it is not made within the prescribed time.

For termination advice specific to your unique business situation, please contact Red Wagon Workplace Solutions on 08 8166 2110.