Can a worker ‘unsure of employment period’ ask for dismissal relief?

The Fair Work Commission (FWC) recently dealt with the unfair dismissal claim of a worker who was unsure when he was employed and when he was terminated by his employer.

From September 2022 until his dismissal in March 2023, the worker was employed as a casual worker by Benalla Bowls Club Inc.

He was dismissed for inappropriate behaviour towards female staff and customers. The worker denied that his conduct was inappropriate and argued that his dismissal was unfair.

The employer rejected his claim and said that he had not served the minimum employment period of six months.

Minimum employment period

Since the employer is not a small business, the minimum employment period he must have served to be a “person protected from unfair dismissal” is six months.

The employer said the worker started on 13 September 2022 and was dismissed on and with effect from 10 March 2023, three days short of the six-month period.

Meanwhile, the worker said he started on 12 September 2022 and that his dismissal occurred on 12 March 2023, so for him, he had completed six months of service.

However, he said he was “unsure” about his period of employment, saying, “I don’t know I’m 2 days short... how do I know.”

At the conference, the employer’s chief executive officer said that the worker did not have a written contract of employment, nor had he been given a termination letter.

Accurate payroll records

She said they had employed and dismissed the worker orally. She also said the management’s payroll records showed that he worked his first shift on 13 September 2022, and that he worked his last shift on 10 March 2023.

She submitted copies of timesheets for the weeks covering the alleged employment period, bearing the signatures of the worker and his manager.

The worker, on the other hand, did not contend that the weekly pay records submitted by the employer were wrong, nor did he argue against their accuracy.

According to records, the worker said, "he was not sure that he had been dismissed at all because he had received nothing in writing." He also said, "he had hoped that the employer would continue to roster him for work."

The CEO said that she and the operations manager dismissed the worker on the day of his last shift and that the operations manager asked the worker to return his name badge and told him that he was not required.

HRD previously reported on a case involving a worker who was dismissed from employment because of his cavalier attitude about his attendance.

While the employer did not dispute that the worker’s final payslip had the word “terminated” written on it, it contended that the worker was ineligible for an unfair dismissal case as he did not meet the required minimum employment period.

The FWC’s decision

"The weekly pay records are clear and precise. There is no reason to think that they are not accurate,” the commission said in its decision.

“The worker's contention was that he began and ended his employment in those same weeks but on different days, however, he is mistaken."

"The worker's period of employment started on 13 September 2022 and ended on 10 March 2023. It was a period of less than six months," the FWC said.

"Therefore, he's not a person protected from unfair dismissal," it added. Thus, it dismissed the worker’s unfair dismissal claim.