Admin bungle enables dismissal dispute to proceed

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Admin bungle enables dismissal dispute to proceed

An employer's bid to have an unfair dismissal claim tossed out because it was 'out of time' has failed. An administrative bungle resulted in the termination letter not identifying the worker's actual employer, hence the dismissal date was invalid.

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An employer has lost its chance to quickly knock out an unfair dismissal application due to administrative failures. 

Salesman Mr ‘AvE’ was allowed by the Fair Work Commission to proceed with a claim against his employer that would have otherwise been out of time as it wasn’t clear from the correspondence which company had employed and dismissed him.

Respondent company Solar Station Alpha (Solar) offered a job to Mr AvE on 19 November 2014 by a letter bearing corporate logos of three associated companies – Solar, Arvio and Phase. 

From start to dismissal


Mr AvE started work on 3 December 2014 and his employment contract of 19 December identified Solar as the employer. However, he performed work for Solar, Arvio and Phase: his business cards identified him as working for Arvio but he also sold – and was responsible for – products from Phase.

Meanwhile, it appears from the evidence that the senior managers did not know accurately who was employed by what company. One, the national sales manager for Arvio, testified that he “didn’t have a clue” as to whether Mr AvE worked for Arvio or not. 

On 2 March 2016, Mr AvE was issued with a warning letter alleging he wasn't hitting sales targets nor making the appropriate number of appointments. It was also alleged he had talked a client out of a sale. 

A week later, he was summoned to a meeting where it was alleged he had “bullied a director of Arvio” into resigning. He was then summarily dismissed for misconduct.

He was given an Arvio letter-headed termination letter which stated he was being terminated from his employment with Arvio.

When does the 21-day unfair dismissal clock start?


Mr AvE did not then show for work and on 12 March went overseas on a previously planned holiday, returning on 31 March.

On 12 April Mr AvE presented for work, saying he was not terminated because the termination letter was not from his employer. He left on the understanding that he would then be issued a revised termination letter.

He re-presented for work the following day and was given a revised termination letter. It was backdated to 9 March and was issued on Solar’s letterhead but, again, referred to Mr AvE being fired by Arvio. However, Mr AvE, unlike on previous occasions, did not subsequently re-present for work. 

On 4 May 2016 Mr AvE filed an application to the Fair Work Commission alleging unfair dismissal. 

Solar attempted to have the application dismissed on the grounds it fell outside the 21-day time limit, as they had fired him on 9 March. However, Mr AvE argued that the correct date of dismissal was 13 April 2016 and so his application was, in fact, a few days before the deadline. 

What the evidence showed


Deputy president Kovacic ruled that the documentation showed that Solar was Mr AvE’s employer, not Arvio. 

“This in turn supports a finding that the termination letter given to Mr AvE on 9 March 2016 was ineffective as it was not issued by his actual employer… while the revised termination letter… potentially suffers from the same error, Mr AvE’s conduct in not presenting for work reflects his acceptance of the termination of his employment from that date.”

The case proceeds before the commission.

What this means for employers


You couldn’t ask for a more clear example of why employers and HR managers need to ensure their administration is correct. The applicant would simply not have have been able to bring this case if the first termination letter had been from the correct employing company and on the correct letterhead.

Good standards of administration would have ensured the employee was matched to the right employing entity in the company files, even after a company reorganisation. This would have saved the employer from having to undergo a costly and time-consuming hearing. 

AvE v Solar Station Alpha Pty Ltd [2016] FWC 7112 (5 October 2016)
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