FWC Ruling on Employee Dismissal During Sick Leave Highlights New Right to Disconnect
Employment Law: 19 July 2024
Author: Bianca Mazzarella - Our People
The Fair Work Commission (FWC) recently had to determine if an employee was required to check their emails during the taking of personal leave to meet the deadline for filing a general protections claim after being dismissed (Michelle Sciberras v Labour Solutions Australia Pty Ltd [2024] FWC 1615 (21 June 2024)).
The Fair Work Commission (FWC) recently had to determine if an employee was required to check their emails during the taking of personal leave to meet the deadline for filing a general protections claim after being dismissed (Michelle Sciberras v Labour Solutions Australia Pty Ltd [2024] FWC 1615 (21 June 2024)).
Facts:
On 1 November 2023, Ms Michelle Sciberras (Applicant) filed a general protections application to the FWC to dispute her dismissal. She claimed that Labour Solutions Australia Pty Ltd (Employer) terminated her employment on 10 October 2023, while she was on sick leave, but she only learned about the dismissal later. The Employer claimed that the Applicant did not bring an action within 21 day time limit as is required.
On 4 September 2023, the Applicant went on sick leave due to a work-related injury, providing medical certificates covering the period from 4 September to 21 September 2023. After returning to work, she was declared unfit for the period from 6 October to 13 October 2023.
While on sick leave, on 10 October 2023 the Employer sent the Applicant an email dismissing her stating that she was made redundant. However, she only became aware of her dismissal six to eight days later after noticing an unexpectedly large deposit in her bank account. The Applicant stated she had not checked her emails due to serious illness.
Findings:
The FWC has authority to allow a longer period to bring a general protection claim if they are satisfied there are exceptional circumstances considering the reason for the delay, the application’s merits, and fairness as between the Applicant and other people in a similar position.
The FWC was satisfied the Applicant had not sent any emails on 10 October 2023, however she had sent emails on 11 October 2023.
The FWC stated a dismissal is not effective until it is communicated to the employee and that the 21-day period to file for unfair dismissal should start only when the employee becomes aware of their dismissal or had a reasonable chance to know about it.
The FWC noted that while email notifications can often provide a reasonable opportunity for an employee to learn about their dismissal, there are exceptions. For example, if an employee doesn't read the email due to an incapacitating illness or legitimate inability to access it, mere receipt of the email is not enough.
The FWC found that the dismissal was not communicated to the Applicant in a way she could reasonably know about on 10 October 2023, since she only accessed her emails on 11 October 2023. The Applicant didn't have email access on her phone, and there was no evidence the Employer followed up after the email to ensure she knew about her dismissal. She was also not obligated to check work emails on 10 October 2023.
Conclusion:
Navigating employment rights, especially in light of new disconnect policies, can be complex.
Bianca Mazzarella is Special Counsel at Aitken Partners and has many years of experience in dealing with complex employment matters. In preparation for the ‘right to disconnect’ protections shortly being implemented, employers should consider reviewing their employment agreements and workplace policies regarding employees being contactable outside of working hours. Bianca can be contacted on 8600 6093 or bmazzarella@aitken.com.au for all your employment law queries.