FWC decision reminds employees to update contact information

In the digital age, it’s not uncommon to have multiple email addresses or mobile numbers floating around the web. However, the problems associated with this can go far beyond simply forgetting your password, seeing missed calls or, as the recent decision below from the Fair Work Commission shows, “forgetting to check your phone “.

In the recent case of Daniel James Hunter v Karara Mining Ltd [2022] FWC 494, a senior fair labor commission (CC) member (Member) concluded that the fact that an employee failed to update their contact information, resulting in the employee not receiving their termination notice, is not sufficient to justify the FWC accepting a unfair dismissal complaint filed one day late.

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Mr. Hunter was employed by Karara Mining Ltd (Karara) as a technician at a mining site in Western Australia between December 2019 and November 2021. Before starting his employment, Mr Hunter had to complete a number of forms which were sent to his email address. Mr Hunter asked Karara to provide him with these forms via his father’s email address as he was having trouble accessing his email account at the time.

In October 2021, following instructions from the Western Australia Chief Health Officer, Karara sent a company-wide communication advising staff that they should provide proof that they had received the first dose of the COVID-19 vaccination by November 26, 2021 (Deadline) in accordance with the instructions. Failure to do so will result in the dismissal of the employee.

The following week, Mr. Hunter discussed with his supervisor the payment of his accrued annual leave upon termination of employment. Mr. Hunter was referred to Karara’s human resources department (TIME) where he questioned the company’s position on the mandatory vaccination policy and the payment of his accumulated rest time. Notably, it was submitted by Karara that Mr Hunter asked HR to provide an estimate of the amount of the payment if he resigned, his last day being November 30, 2021.

Mr Hunter did not provide any evidence of vaccination by the deadline and was released from the site on November 30, 2021, after which he was on annual leave for a further 14 days. On December 15, 2021, HR attempted to contact Mr. Hunter by telephone to verbally notify him of his termination, but was unable to reach him. HR also sent an email with the termination notice (Note) to the address on file with Mr. Hunter.

Mr Hunter claimed he ‘became suspicious’ that his job had been terminated when he did not hear from Karara after her annual leave ended on December 15, 2021, saying he had no received the notice of dismissal only after this date. A claim for unfair dismissal filed by Mr. Hunter was challenged by Karara on the grounds that it was not filed within the statutory time limit under section 394(2) of the Fair Work Act. 2009 (Cth)(Act).

What were the issues and considerations?

The preliminary question for the FWC was whether or not the actual dismissal took place on December 15, 2021, when the notice was emailed to Mr Hunter.

Vice President Beaumont reviewed Karara’s two-month vaccination campaign rollout. Although Mr. Hunter informed Karara that her email had previously been blocked, the FWC was unconvinced because such a change had to be made by the employee through Karara’s payroll system. Additionally, it has been deemed to be the employee’s responsibility to update their contact information in such circumstances. For these reasons, Vice President Beaumont estimated that the dismissal took effect on December 15, 2021, the date on which the email attached to the termination letter was received on Mr. Hunter’s email account. Mr. Hunter was unable to establish that he did not have a reasonable opportunity to learn of his termination.

Vice President Beaumont then considered whether exceptional circumstances existed under section 349(2) of the Act to warrant an extension of time for the filing of Mr. Hunter’s wrongful dismissal complaint. Reviewing the factors in this section, Vice President Beaumont paid particular attention to the reasons for the delay, concluding that Mr. Hunter could not provide a credible explanation for the delay in light of the immunization rollout campaign. of Karara.

Ignorance was not bliss in this case. Vice-Chairman Beaumont said that although Mr Hunter claimed he was confused about the communication, he was “informed enough of the circumstances to inquire with HR about the amount of compensation he would receive s ‘he resigned…’.

Vice Chairman Beaumont also noted that the fact that Mr. Hunter did not contest the dismissal, other than through the wrongful dismissal complaint, weighed against the finding of exceptional circumstances. The balance of factors in this section was neutral and ultimately did not weigh in the FWC’s conclusion.

The decision of the FWC

It was ruled that Mr Hunter had failed to demonstrate the existence of exceptional circumstances under section 394(3) of the Act and that the one-day delay in filing was fatal to the claim .

Mr Hunter had not checked his affected email account after his annual leave (which he had requested due to his revoked access to the site). This oversight suited him perfectly. Accordingly, Mr. Hunter’s wrongful dismissal claim was dismissed.

Key Takeaways for Employers and Employees

  • It’s important for employers to educate their employees about existing employee portals and records management systems and how they can use them in a digestible and easy-to-understand way.
  • Employers can consider sending semi-annual reminders to employees to update personnel details.
  • Employees should ensure they are aware of relevant workplace policies or codes that may apply, or approved forms that must be completed when updating their personal information.
  • It is the employee’s responsibility to ensure that their personal data kept on file is true and correct and to update such data as necessary.

If you have any questions about this article or need help with a labor law issue, please contact us or submit your request here.

Authors: Rachel Drew, Milly Khan and Emily Trompf

Warning
The information in this article is general in nature and is not intended to address the circumstances of any particular person or entity. Although we strive to provide accurate and timely information, we do not warrant that the information in this article is accurate as of the date it is received or that it will continue to be accurate in the future.

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