The Case

Petkovski v M J Luff Pty Ltd T/A Border Express (2021)

M J Luff Pty Ltd T/A Border Express (Border Express) employed Mr Petkovski as a parcel sorter. A meeting was arranged for Mr Petkovski to respond to allegations of misconduct. During the meeting on 21 July 2021, Mr Petkovski was handed a copy of a letter setting out the allegations and directing Mr Petkovski to attend another meeting to show cause why his employment should not be terminated. Mr Petkovski then became enraged, “swearing loudly with abusive language and [making] threats before slamming the large table in the boardroom and damaging its legs. He also created some holes in the wall and also damaged another door on the way out”.

Thereafter, Border Express made the decision to terminate Mr Petkovski’s employment. As such, on 21 July 2021, Border Express sent a letter notifying Mr Petkovski of his dismissal to his private email address. Border Express also sent a copy of the letter by registered post to Mr Petkovski’s residence, which arrived on 27 July 2021.

On 13 August 2021, Mr Petkovski made an unfair dismissal application in the Fair Work Commission (FWC). Border Express lodged a jurisdictional objection on the basis that the unfair dismissal application had been made outside the 21-day time limit. Mr Petkovski claimed that he did not receive the email notification as he no longer used that email address and could not access it. Mr Petkovski claimed he received the employment termination letter by post on 27 July 2021.

The Verdict

As Mr Petkovski’s email address was not current, the FWC held that Border Express had not provided Mr Petkovski with the notice of dismissal until 27 July 2021. As Mr Petkovski was not notified of his termination of employment until 27 July 2021, his dismissal did not take effect until that date. As such, Mr Petkovski’s application for unfair dismissal was filed within the 21-day time period.

The Lessons

It is important to keep the contact details of all your employees up to date. If possible, it is always recommended to notify an employee of their dismissal in person. If notice of termination of employment cannot be delivered in person to the employee, all reasonable steps should be taken to notify the employee by an alternate method. Couriers are often used for these notices to ensure swift delivery.

If delivery must be done by email, telephoning the employee and sending them a text alerting them to check their email would be appropriate. Given the now common use of video link technology, notification of termination of employment may also be delivered via a video meeting.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.