22 March 2022
In the digital era, it is not uncommon to have multiple email addresses or mobile numbers floating around on the web. However, the problems associated with this can extend much further than simply forgetting your password, seeing missed calls or, as seen in the below recent Fair Work Commission decision, “forgetting to check your phone”.
In the recent case of Daniel James Hunter v Karara Mining Ltd  FWC 494, a senior Fair Work Commission (FWC) member (Member) found that an employee’s failure to update their contact information, which resulted in the employee missing his termination notice, is not enough to warrant the FWC accepting an unfair dismissal claim filed one day late.
Mr Hunter was employed by Karara Mining Ltd (Karara) as a Technician on a mine site in Western Australia between December 2019 and November 2021. Before commencing his employment, Mr Hunter was required to complete a number of forms that 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 Western Australian Chief Health Officer directions, Karara sent a company-wide communication notifying staff that they would need to provide evidence that they had received the first dose of the COVID-19 vaccination by 26 November 2021 (Deadline) in accordance with the directions. Failure to do so would result in termination of the employee.
The following week, Mr Hunter spoke with his supervisor about the payment of his accrued annual leave upon termination of his employment. Mr Hunter was referred to Karara’s HR department (HR) where he queried the company’s position on the mandatory vaccination policy and about the payment of his accrued time-in-lieu. Notably, it was submitted by Karara that Mr Hunter requested HR provide an estimate payout figure should he resign, with his final day being 30 November 2021.
Mr Hunter failed to provide any proof of vaccination before the Deadline and was demobilised from the site on 30 November 2021, after which time he was on annual leave for a further 14 days. On 15 December 2021, HR attempted to contact Mr Hunter by phone to provide verbal notification of his termination but could not reach him. HR also sent an email containing the notice of termination (Notice) to the address recorded on Mr Hunter’s file.
Mr Hunter claimed he “grew suspicious” that his employment had been terminated when he did not hear from Karara after his annual leave finished on 15 December 2021, stating that he did not receive notice of termination until after this date. An application for an unfair dismissal remedy filed by Mr Hunter was objected to by Karara on the basis that it was not filed within the statutory deadline under section 394(2) of the Fair Work Act 2009 (Cth)(Act).
The preliminary question for the FWC was whether or not effective dismissal occurred on 15 December 2021, being the date that the Notice was emailed to Mr Hunter.
Deputy President Beaumont considered Karara’s two-month vaccination campaign rollout. Although Mr Hunter advised Karara that his email had been previously blocked, the FWC was not convinced by this as any such change was required to be made by the employee through Karara’s payroll system. Furthermore, it was held that it is the employee’s responsibility to update their contact details in such circumstances. On these grounds, Deputy President Beaumont held that the dismissal took effect on 15 December 2021, the date the email attaching the termination letter was received into Mr Hunter’s email account. Mr Hunter was unable to establish that he did not have a reasonable opportunity to learn of his dismissal.
Deputy 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 unfair dismissal claim. In considering the factors under this section, Deputy President Beaumont paid particular attention to the reasons for the delay, finding that Mr Hunter could not provide a credible explanation for the delay in light of Karara’s vaccination rollout campaign.
Ignorance was not bliss in this case. Deputy President Beaumont stated that whilst Mr Hunter claimed he was confused about the communication, he was “sufficiently appraised of the circumstances to make enquiries with HR about the amount of pay he would receive if he resigned…”.
Deputy President Beaumont also noted that Mr Hunter’s failure to dispute the dismissal, other than through the unfair dismissal claim, weighed against the finding of exceptional circumstances. The balance of the factors in this section were neutral and ultimately did not weigh into the finding made by the FWC.
It was held 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 relevant email account after his annual leave (which he had requested because of the revocation of his site access). This oversight sat squarely with him. As a result, Mr Hunter’s unfair dismissal claim was dismissed.
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Authors: Rachel Drew, Milly Khan & Emily Trompf
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.