Terminating employment – ensure you state the date

The Fair Work Commission confirmed notice of termination to an employee must clearly specify the date termination takes effect. This was determined in the recent decision of Duggan v Metropolitan Fire and Emergency Service Board [2017] FWC 1197 (Duggan) in order to comply with section 117(1) of the Fair Work Act (FW Act).

Duggan confirms making termination conditional upon a future event, when the precise date of the event is unknown, will not satisfy the requirements of section 117 of the FW Act. An examples of this includes termination at the resolution of an industrial dispute.

This decision could be contrasted with a broader approach at common law. At common law, notice of termination may validly operate subject to a condition, provided the notice is sufficiently certain to allow the conditional date of termination to be ascertainable and the employee is in a position to know that the condition has been satisfied.  

Providing an employee with a termination letter that does not constitute proper notice for the purposes of section 117 will be particularly problematic for employers looking to terminate during the employee's minimum employment period under section 383 of the FW Act. An invalid notice of termination may result in an employee slipping from within the minimum employment period to outside the minimum employment period, opening up the risk of an unfair dismissal claim that an employer would have otherwise been protected from. This issue was squarely considered in Duggan.

To avoid such a risk, you should ensure notices of termination specify a date when the termination is to take effect, and wherever possible, avoid them being conditional on a future event.

The full case is available to read here: Duggan v Metropolitan Fire and Emergency Service Board [2017] FWC 1197

This Insight was drafted with the assistance of Albert Khouri, Lawyer.

Sally Moten

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Sally Moten Senior Associate

Sally is an experienced employment lawyer who specialises in all aspects of workplace relations and safety law. She is also an experienced litigator.

Sally has extensive experience delivering practical and strategic advice to government and private sector employers on the full range of workplace issues including:

  • industrial relations such as negotiating awards and enterprise agreements, managing industrial disputes and advising on the interpretation of awards and agreements
  • discipline & performance management, including separation management arising from misconduct, poor performance or restructures
  • work health & safety, including defending prosecutions, developing safety management systems and conducting training
  • governance & compliance including developing legislative compliance frameworks and obligation registers
  • statutory inquiries, including instructing counsel at the Independent Commission Against Corruption
  • discrimination, including investigating complaints and defending employers who are the subject of formal complaints in the NSW Anti-Discrimination Board or the Australian Human Rights Commission
  • privacy such as workplace surveillance.

Sally is an experienced litigator and is confident managing all aspects of litigation including interviewing witnesses, drafting affidavits and submissions, attending conciliations and mediations and appearing in tribunals or courts.

Her past experience includes working in-house for a large NSW Government organisation. This gives Sally a unique insight and understanding of the complex issues faced by government employers.

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