Employee received conflicting verbal and written information about dismissal
The Fair Work Commission (FWC) recently examined an extension application that revealed critical risks when employers provide inconsistent termination communications.
The case arose when a sales representative was verbally told his employment was ending immediately but received written documentation suggesting a later termination date, creating confusion about when the dismissal actually took effect and leading to procedural complications.
The worker was verbally informed on 5 May 2025 that he was dismissed and not required to return to work, but the written termination letter stated his employment would end on 12 May 2025. This discrepancy between verbal and written communications created uncertainty about the effective dismissal date, which became legally significant when determining application filing deadlines under employment law.
The employer maintained that the dismissal took effect when the worker was verbally informed and told not to return, while the worker argued that the written documentation indicated a later end date. The case demonstrates how inconsistent termination messaging can create unnecessary legal disputes and procedural complications that could be easily avoided with clearer communication protocols.
Probationary dismissal process creates confusion
The employment relationship involved a worker employed as a sales representative for nine weeks during a probationary period before being dismissed for performance concerns. On 5 May 2025, the worker attended his rostered shift and, towards the end, was requested by his manager to step outside for a discussion, where he was offered but declined a support person.
During the discussion, the worker was informed he was being dismissed and asked to sign a letter, which he declined. The manager clearly told the worker he was not required to return to work as it was his last shift, because his employment was being terminated. This verbal communication suggested immediate termination with no expectation of returning to work.
The employer's performance concerns included excessive phone use, need for constant monitoring, failure to follow directions, and lack of commitment, highlighted when the worker failed to appear for work on 4 May, leaving the store short-staffed because he had slept in and preferred to spend time with family.
Written documentation contradicts verbal dismissal
Shortly after the meeting, the worker received a phone call from the talent specialist confirming he was being dismissed based on performance.
At 3:30 pm that afternoon, the talent specialist sent an email stating: As discussed over the phone earlier to support you in securing your next employment opportunity, you will not be required to attend the remainder of your notice period; however, you will be paid in lieu in line with your initial notice period.
The termination letter attached to the email created the confusion by stating the worker was being provided with one week's notice and that his employment would end on 12 May 2025. This written documentation suggested a notice period despite the earlier verbal communication that employment was ending immediately.
The email's language about not being required to attend the remainder of your notice period implied there was a notice period being worked, even though the worker had been told verbally not to return. This inconsistency between immediate verbal dismissal and written notice period documentation became the source of legal uncertainty.
Timing discrepancy creates legal complications
The conflicting communications led to disputes about when the dismissal actually took effect, which had practical legal consequences for filing deadlines under employment legislation. The worker's representative interpreted the written documentation as indicating employment continued until 12 May, while the employer maintained the verbal dismissal on 5 May was effective immediately.
The FWC ultimately determined the dismissal took effect on 5 May 2025, finding: On 5 May 2025, [the worker] had been informed verbally that he was being dismissed, and he was not required to return to work out his notice period. On that same day, [the worker] was also notified by email that he was not required to work out the notice period and was being paid in lieu of notice.
The Commission confirmed the worker did not return to work after 5 May 2025, supporting the finding that despite the written documentation's reference to 12 May, the effective termination occurred when he was verbally dismissed and told not to return.
The payment in lieu of notice did not extend the employment relationship beyond the verbal dismissal date.
Commission clarifies payment
The FWC addressed arguments that the timing of termination payments supported a later dismissal date, with the worker's representative noting payment occurred on 8 May, three days after the notice of termination.
The Commission rejected this reasoning, stating that even if termination occurred when payment was made, the application would still have been filed outside the required timeframe.
The Commission emphasised that payment in lieu of notice does not extend employment beyond the notification date when employees are told not to return to work.
The FWC found the employer's email clearly stated the worker was being paid in lieu of notice, confirming immediate termination despite the written reference to a later end date.
This clarification reinforces that when employers dismiss employees immediately with payment in lieu of notice, the employment relationship ends when the dismissal is communicated, not when payments are processed or when the notice period would have expired if worked.
Professional advice highlights documentation importance
The case revealed how unclear termination communications can lead to professional misinterpretation, with the worker's paid representative incorrectly advising that employment continued until the date mentioned in the written documentation.
The FWC noted: It should reasonably be expected that a paid agent who provides advice and representation on employment matters before the Commission, should make the appropriate inquiries or investigations of the client before providing advice.
The Commission found the representative failed to make proper inquiries that would have revealed the worker was verbally informed not to work out his notice period and was being paid in lieu. This professional error resulted from the employer's inconsistent messaging, demonstrating how unclear termination communications can create cascading problems beyond the immediate employment relationship.
The FWC ultimately granted an extension due to exceptional circumstances caused by representative error, but also withdrew permission for the paid agent to participate in further proceedings, highlighting the serious consequences of inadequate professional advice based on unclear employer communications.
Extension granted despite communication failures
While the FWC granted the extension application due to exceptional circumstances involving representative error, the decision emphasises the importance of consistent termination communications.
The Commission determined: I am satisfied that there were exceptional circumstances that warrant the granting of an extension of time based on the representative's incorrect interpretation of the employer's mixed messages.
The Commission considered additional factors, including the worker's immediate attempts to dispute the dismissal by contacting the employer and seeking reinstatement. The FWC found no prejudice to the employer from granting the extension and determined fairness considerations were neutral, allowing the matter to proceed to conciliation.
https://www.hcamag.com/au/specialisation/employment-law/hr-risk-exposed-as-termination-messages-create-confusion-about-dismissal-timing/545285
