Fair Work upholds dismissal of employee who was terminated after not providing proof of vaccination

Today, HR administration systems make it easier than ever for employees to update their personal contact details. However, when there is formal communication to be sent to employees, employers should also ensure that they have the most up to date details for their employees to avoid any dispute about when information was sent or communicated.

In a recent decision of the Fair Work Commission (FWC), an employee was refused an extension of time for his unfair dismissal application after his termination of employment letter was sent to an email address that he did not check.

The FWC was not satisfied with the reasons given by the employee for the delay in lodging his application and refused to grant an extension of time. Employees have 21 days after the date of their dismissal in which to lodge an unfair dismissal application and the FWC may only extend the time period if it is satisfied that there were exceptional circumstances.

Background

The employer used a self-service payroll system which required employees to keep their contact details up to date.

Following health directions from the chief health officer of Western Australia regarding COVID-19, the employer sent an email to employees advising them of the government mandate.

On October 22, 2021, the employer sent an email advising all employees of the requirements and their obligation to provide proof that they had received the first dose of a COVID-19 vaccine by November 26, 2021. The email outlined that if an employee did not provide evidence of their first COVID-19 vaccination, the employee would be unable to access the site from December 1, 2021 and would be given a further 14 days to provide proof. A further failure to comply would result in termination of the employee’s employment.

The employee acknowledged he was aware of the information regarding the requirement to be vaccinated. The employee made enquiries with HR about the amount of pay he would receive if he resigned as of November 30, 2021. He also enquired about taking annual leave during this period.

The employee took annual leave from December 1 and was given a further 14 days to provide proof of his vaccination.

By 15 December 2021, the employer had not heard back from the employee in relation to his vaccination status and accordingly, used the email on its system to send a termination of employment letter to the employee. At the same time, the employer also tried to contact the employee via telephone to advise him of its decision, but was unable to reach him.

The employee attributed the delay in filing his application to the employer not ensuring he received timely notification of his dismissal. He maintained that the employer knew he had trouble accessing his email account as he had advised them in 2019 that he had been temporarily blocked from his email account and was using a family member’s email address.

The employer lodged a jurisdictional objection to the application on the grounds that the application was not filed within the 21-day period prescribed by section 394(2) of the Fair Work Act 2009 (Cth) (FW Act).

The employer maintained that they relied on the contact details provided by the employee and recorded on the payroll system and sent the termination of employment letter to the employee by email on 15 December 2021.

Decision

DP Beaumont was satisfied that employees were required to update their own contact details on the self-service payroll system and to ensure those details were correct. The employee did not do this.

Further, DP Beaumont held that the employee was aware that his employment was at risk given the employer had communicated to all employees about the requirement to be vaccinated under the health orders. Knowing this, the employee still failed to check his email account at the conclusion of his annual leave.

DP Beaumont was satisfied that the employee did have a reasonable opportunity to find out that he had been dismissed. She concluded that the employee’s dismissal took effect on December 15, 2021 and the employee lodged his unfair dismissal application outside of the 21-day period.

Having determined that the unfair dismissal application was late, DP Beaumont went onto consider whether to grant an extension of time.

DP Beaumont was not satisfied that there were any exceptional circumstances to warrant an extension on the application for unfair dismissal.

DP Beaumont noted that there may be circumstances in which an email may not provide a reasonable opportunity for an employee to become aware of their dismissal, such as when an employee has an illness or is legitimately unable to access their email, but held that this was not the case in this matter.

The employer had both emailed the employee using the email address on record and also attempted to contact him via telephone.

DP Beaumont found that it would not be equitable to grant an extension for the application of unfair dismissal.

Accordingly, the employee’s unfair dismissal application was dismissed.

Lessons for employers

The FWC found in this matter that it was the responsibility of the employee to provide their employer with their correct contact details and to ensure they are up to date.

An employer should also ensure that employee contact details are regularly updated in their systems, this might include periodically reminding employees to check that their contact details and next of kin information is correct.

When terminating an employee’s employment, it will also be important that employees take reasonable steps to ensure that the employee is aware of the decision to terminate their employment. Sending an email alone will not always be satisfactory and ideally, employers should advise employees in a face-to-face meeting which is followed up with the termination of employment letter.

This article was first published by Workplace Law. Information provided in this blog is not legal advice and should not be relied upon as such.