Sacking letter sent to an email account he no longer used

What happened

Kevin Kendall had worked for his employer for about 12 years, and his case was heard in Perth. The case is listed under the name Fortescue Metals Group, but the Commission recorded his employer as The Pilbara Infrastructure Pty Ltd.

Mr Kendall said he was off work with a medical certificate from his doctor stating he would be unable to work through to 5 July 2021. He replied to a letter from the employer dated 31 May 2021 about his fitness for work, but he said he never got a response.

Around 5 July 2021 a small amount of money from the employer appeared in his bank account. Nothing about it had arrived at the email address he had used to deal with the employer for years. He then remembered an old email address from when he started the job, reactivated it, and found an email with a letter dated 16 June 2021 telling him his employment had ended that day.

The time limit problem

Over the next six days Mr Kendall sought free legal help and rang the Commission's hotline. He lodged an unfair dismissal application on 11 July 2021.

Under s 394(2) of the Fair Work Act 2009 (Cth), an application must be made within 21 days after the dismissal took effect. Counted from 16 June 2021, his application looked late. The employer said it would not object to an extension of time, as long as the Commission was satisfied there were adequate reasons for one.

Mr Kendall said he had told his superintendent and the human resources team many times not to use the old address because it was not current.

The legal test for a late claim

Section 394(3) lets the Commission allow extra time only if it is satisfied there are exceptional circumstances. It must take into account six things: the reason for the delay; whether the worker first became aware of the dismissal after it took effect; any action the worker took to dispute the dismissal; prejudice to the employer, meaning unfair disadvantage, including any caused by the delay; the merits of the claim; and fairness between the worker and others in a similar position.

Commissioner Williams worked through those factors. There was no evidence Mr Kendall had disputed the dismissal other than by applying, and the Commissioner did not accept that the employer would suffer any prejudice. The merits were treated as neutral: the employer's letter said he had been un-contactable for 40 days and had abandoned his job, while he said he was on certified sick leave. Only a hearing could decide who was right. There was no information on fairness compared with others.

What the Commission decided

The decisive point came under the second factor. Relying on the Full Bench decision in Ayub v NSW Trains [2016] FWCFB 5500, the Commissioner said a dismissal does not take effect until the worker is aware of it, or has at least had a reasonable opportunity to become aware of it.

Usually, when a dismissal is sent by email, the worker is presumed to have had that opportunity once the email reaches their inbox. Here it reached an inbox the employer knew was no longer used. That did not give Mr Kendall a reasonable opportunity to learn of his dismissal on 16 June 2021.

So the dismissal took effect on 5 July 2021, the first day he could reasonably have known. Counted from then, his application on 11 July 2021 was well within 21 days. The Commission held it was not late at all and needed no extension, and said it would hold a conciliation conference before fixing a hearing on whether the dismissal was unfair.

What this means for you

A late claim needs exceptional circumstances, but this case was not decided on that point. It shows something more basic: the 21 days run from when a dismissal takes effect, and a dismissal you had no reasonable chance to see has not yet taken effect.

That protection has limits. If the email reaches an inbox you actually use, the clock usually starts when it arrives, whether or not you read it. If you are off work, keep checking the address and phone number your employer holds, and tell them in writing if your contact details change.

If you find out late that you have been dismissed, act at once and get advice. The law on this point has not changed since 2021: a Fair Work unfair dismissal claim must still be made within 21 days after the dismissal takes effect, and extensions are granted only in exceptional circumstances.