Fair Work: How long is the 'minimum employment period'?

The Fair Work Commission has clarified important principles surrounding the “minimum employment period” in a judgment handed down on 18 January 2022. Although the employee did not work on a rostered schedule, the FWC found her employment was “regular and systematic”, and therefore she met the requirements to be protected from unfair dismissal. 

The case concerned an employee who worked for a funeral service in South Australia. The worker was a casual employee “on the books” of the funeral service and was routinely assessed for work as it arose.

In early November 2021, the worker received an email from her employer, asking her to return her key and uniform. In reality, the key was no longer required for the nature of the employee’s role, and the uniform was to be dry-cleaned. However, without this context, the employee took the email as a sign of her dismissal.

Later that evening, the employee penned a social media post expressing her disgust at being dismissed in “such an unprofessional manner”. One of her colleagues forwarded the post to their employer. 

The employer, taken aback by what she considered “unprofessional” use of social media, decided that the employee would be taken “off the books” and would no longer be offered shifts. The employee applied to the FWC, contending she was unfairly dismissed.

The hearing

The main issue before the FWC was whether the employee had met the “minimum employment period” of one year. The employer contended that, despite working for the company since 2019, the long breaks in the employee’s work barred her from meeting this requirement.

However, the FWC was satisfied that, throughout the last twelve months of her employment, the employee worked on a “regular and systematic basis” and had a “reasonable expectation of continuing employment”. This led it to find that the worker had met the minimum employment period.

Although the FWC said it was “perfectly understandable” that the worker believed she had been dismissed, it found the employment relationship was not severed until after the employee’s social media post.

Satisfied that the worker was protected from unfair dismissal, the FWC referred her application to the conciliator for further judgment.

Key takeaways

• In order to be protected from unfair dismissal, an employee must typically have worked at least the “minimum employment period”
• For casual employees, the FWC will consider whether the employee worked on a “regular and systematic basis” and had a “reasonable expectation of continuing employment” in its decision
• Despite reduced work, for example, as a result of COVID-19, employment may still be considered regular and systematic