With systems, automation, processes and AI continuing to dominate the workplace now and into the foreseeable future, the Fair Work Commission has reminded all Employers and HR teams that the legal obligations when it comes to termination of employment requires some:
- Manual thinking
- Proper consideration of the factual matrix
- A process is only good enough if it is followed and people actually know about it
Employers and HR
A decision by the Fair Work Commission of Guy Clark v GPC Asia Pacific Pty Ltd T/A Repco [2025] FWC 210 (22 January 2025) was set to determine when a termination of employment took place.
The timing of the termination of employment was integral to the General Protections application made by the employee.
If the termination occurred on 5 August 2024 as the Employer contends then the General Protections application would be out of time and could fail as with jurisdictional objection.
On the other hand, if the employee was able to establish the termination only took effect on 7 October 2024 when he was actually notified of the termination, the application would continue. Consequently, the employer would be required to defend the claim.
Over reliance on Systems fails the Employer
The employee was employed by the employer on a casual basis. His last working day was on 28 May 2024.
On 5 August 2024, the employer terminated the applicant’s employment due to his unavailability for shifts. However, the applicant was not made aware of the termination at that time.
Why?
The evidence showed that the employer’s practice was to treat casual employees, including the employee, as inactive:
- When the employee has not worked for some time; and
- Is not available for future shifts.
On 5 August 2024 the store manager was asked to review inactive casuals but because of a change and problem with a system launch in July 2024 the employee was not made aware of the termination of employment.
In practical terms, the usual automated process failed the store manager and the employer.
As time had passed on 7 October 2024, the employee was informed by the store manager that he had been removed from employment due to his inability to fulfil shifts which the employee says is the actual date of termination of employment.
Findings by the Fair Work Commission
The Fair Work Commission found the following:
- The termination of employment of the employee took effect on 7 October 2024 when it was communicated unambiguously to him.
- Broadly, a termination of employment cannot take effect until it is communicated to the employee.
- As the jurisdictional objection as dismissed, the General Protections application therefore was filed within time and could now continue its normal course in litigious proceedings.
Automation and systems fail the Employer
This is a very good lesson for Employers and Human Resources teams.
Over reliance on automation and systems for workplaces is fraught with danger, there needs to be an element of checking, auditing, governance and risk management when dealing with termination of employment.
We have already seen in previous cases that the Fair Work Commission and Courts for that matter, will not accept ignorance as an excuse, but will also not accept that a system being utilised by an employer either breaks down, makes mistakes or is simply not good enough.
Our Employment Lawyers at South Geldard Lawyers have essential expertise in preventing these issues occurring in the first place and helping with the legal issues when they do occur. Feel free to reach out on (07) 4936 9100 or via email to Jonathan Mamaril, Director at jmamaril@southgeldard.com.au. All Employers receive an obligation free consultation.
