Communication is Key: The Importance of Designated Communication Channels 

A recent decision by the Fair Work Commission (FWC) in Rebecca Ramirez v Pinnacle ACT Pty Ltd, Kurt Jaks, Richard Jaksch [2024] FWC 638 offers guidance for employers on the use of electronic communication. This decision highlights the legal intricacies of using electronic communication for significant employment actions and confirms the need for clarity and compliance in employer-employee communication agreements.  

The Facts: 

The case revolved around the dismissal of Rebecca Ramirez. Her employer, Pinnacle ACT Pty Ltd, failed to send the termination notice to her designated personal email address, opting instead for her work and business email addresses. Ramirez had specifically indicated her personal email as the preferred channel for such important communications and did not learn of her dismissal until more than a week after the original email was sent. Only after an enquiry was made by Ramirez, Pinnacle re-sent the dismissal letter to her personal email account. Commissioner Ryan was required to consider whether the dismissal took effect when the letter was initially sent to Ramirez’s work address, or when it was sent over a week later to her personal one.  

Findings and Reasons: 

Commissioner Ryan’s decision considered s14A of the Electronic Transactions Act, which deals with (a) the importance of the retrieval capability and the (b) recipient’s awareness – as matters relevant to whether an electronic communication to be deemed received.  

In this case, the employer’s managing director had consistently used the Applicant’s personal email address for critical employment matters. The FWC accepted that this was an agreed communication protocol and there was no evidence of any agreed change to that arrangement.  

Consequently, Commissioner Ryan held that the dismissal became effective only when the Applicant received the dismissal notice in her personal email account. 

This decision recognised that practically, the personal email account was the de facto channel for important communications between the parties. This finding was supported by the lack of any formal arrangement to alter this established method. 

Key Takeaways for Employers: 

It is important to have a clear, mutually agreed understanding and documentation for communication preferences between employers and employees. Agreed arrangements should deal with how and when official notices, including dismissals, are effectively transmitted, and recognised.  

Practically this can be achieved via engagement letters and contracts, however, can also be established as a discrete issue at the outset of any formal disciplinary process.