The Little Things Count

There is a little-known provision in the Fair Work Act 2009 (Cth) (section 117) that specifies an employer must not terminate an employee's employment unless the employer has given the employee written notice of the day of the termination.

This means that verbally notifying an employee that their employment has been terminated is not enough. By law, a club must provide written notice.

There are also exemptions to this requirement. Such a notice is not required if the employee is employed by a specified period of time or task or season, or terminated for serious misconduct, or they are a casual employee.

There are acceptable lawful means by which such a written notice may be given, including:

• Handing it over to the employee directly (noting this is not advisable at the end of a show cause/termination meeting as it is highly suggestive that no matter what the employee responded, the outcome was pre-determined as a termination decision);
• Leaving it at their last known address; or
• Emailing it to the employee.

The Fair Work Commission (FWC) emphasised the importance of compliance with these provisions in a recent case — Brahmbhatt v Sydney Tools Pty Limited [2023] FWC 1874. In this case, Deputy President Anderson issued a warning to employers as follows:

"not only do they have an obligation to comply with section 117 ... to provide written notice of dismissal to employees to whom that section applies, but also that a failure, whether deliberate or not, to provide written notice in a timely manner is likely to be to their disadvantage should applications be made challenging dismissals which require extensions of time."

In this case, Sydney Tools terminated Mr Brahmbhatt for poor performance. Sydney Tools objected to the FWC extending the period of time for Mr Brahmbhatt to bring an adverse action claim. Mr Brahmbhatt was seeking the extension on the basis that he had repeatedly requested a termination letter from Sydney Tools. Sydney Tools did not provide the termination letter to Mr Brahmbhatt, even though it had one drafted and ready, because Mr Brahmbhatt had refused to sign the letter at the termination meeting.

Deputy President Anderson opined: "[i]t matters not that [Mr Brahmbhatt] refused to sign the termination letter," adding it "should be hardly surprising ... that a dismissed employee, especially one dismissed without prior warning, might consider it contrary to their interests to sign anything let alone the dismissal letter".

Lessons clubs can learn from this decision include:

• Always promptly provide a written termination letter which briefly explains the reason for the termination and the termination date;
• Avoid providing a termination letter immediately at the end of the termination meeting — email or provide it the next day if possible.

If you have any questions about employee terminations, please get in contact with our ClubsNSW Workplace Relations team here.