The FWC clarified the interpretation of the two-time references in Section 383 of the Fair Work Act 2009:
“In the context of the s.383 the phrase ‘immediately before the dismissal’ means immediately before the dismissal took effect. Placitum (i) of s.383(a) is concerned with the time when an employee is told that their employment is to be terminated, that is they are dismissed, whereas placitum (ii) concerns itself with another event, namely the time when employment actually ends.”
The decision further explained: “The notice required by s.383(a)(i) is information about a forthcoming dismissal, whereas the dismissal itself is an event, not merely a decision occurring when the employment relationship comes to an end.”
Employment period timing proved decisive
The precise calculation of the six-month period was the determining factor. According to the Acts Interpretation Act 1901, which applies to the Fair Work Act 2009, a “month” means a calendar month.
The worker began employment on 16 July 2024, meaning his six-month period would end on 16 January 2025. However, he received his termination notice on 14 January 2025 – just two days before reaching the six-month mark.
