Employees covered by Unfair Dismissal protections under the Fair Work Act have 21 days from the date that the dismissal takes effect in order to lodge their application with the Fair Work Commission.  But when is the effective date that the dismissal takes place?  Today we are going to take a look at a recent case which addresses this topic and unpack some of the considerations for business.

One of the common areas where this may be confusing is when it comes to notice periods and if the employee is required to work the notice period or if it is paid in lieu of notice.

For example if an employee is given 4 weeks’ notice that they will be dismissed, and they work through the 4 week period – then the date that the dismissal takes effect will generally be at the end of that 4 week notice period.

HOWEVER, if an employee receives 4 weeks’ pay in advance in lieu (instead) of working and is NOT required to work through the 4 week notice period – then the date that the dismissal takes effect will generally be the last day worked unless the employer specifies a different date of dismissal.

Generally based on these guidelines for businesses facing an unfair dismissal application more than 21 days beyond the effective termination date you will be able to lodge a procedural objection and have the application dismissed on these grounds regardless of the merits of the case.