Employer tries to argue worker didn’t meet required minimum employment period
The Fair Work Commission (FWC) recently dealt with a case involving a worker's unfair dismissal claim against her employer. The dispute centred around whether the worker met the minimum employment period required to be protected from unfair dismissal under the Fair Work Act 2009.
In this case, the worker argued that her employment should be considered continuous, despite a significant break in active work. She contended that a period of overseas travel should be treated as unpaid leave, rather than a break in employment.
The worker also raised questions about the proper notification of termination and the calculation of her overall employment period. These arguments challenged the employer's assertion that the worker had not met the six-month minimum employment period required for unfair dismissal protection.
Minimum employment period and continuous service
The case revolved around the worker's claim of unfair dismissal and the employer's jurisdictional objection. The employer argued that the worker did not meet the minimum employment period of six months required for unfair dismissal protection.
The FWC examined the worker's employment history, which spanned from 3 May 2023 to 6 November 2023, and then recommenced from 14 March 2024 until termination on 1 June 2024. The commission had to determine whether this constituted continuous service.
A key consideration was the interpretation of continuous service, as outlined in a previous Full Bench decision:
"Continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements. The gaps between individual engagements in a sequence of engagements should not be seen as interrupting the employee's period of continuous employment within the meaning of s.384."
Unpaid leave and employment continuity
The FWC determined that the period between 6 November 2023 and 14 March 2024 should be considered as unpaid leave or an unpaid authorised absence. This interpretation was significant in maintaining the continuity of the worker's employment.
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The commission noted that the worker had intended to travel overseas. As stated in the decision: "On 3 May 2023 and 26 October 2023, [the worker] intended to travel overseas. [The worker] wrote an email to [a manager] about her departure date and return date to Heron Island. There was no return date planned by [the worker]."
The commission emphasised that although there was a break in active employment, it did not reset the minimum employment period. Instead, this period was simply not counted towards the total employment duration.
Termination notice and employment period calculation
A crucial aspect of the case was the consideration of when the termination actually took effect. The FWC referred to the Explanatory Memorandum of the Fair Work Act, which states:
"The minimum employment period is assessed either when the person is given notice of the dismissal, or when the dismissal actually takes effect, whichever happens first."
This guidance was essential in determining the actual termination date and its impact on the minimum employment period calculation.
After consideration of the evidence and relevant legislation, the FWC concluded that the worker met the minimum employment period. The commission stated:
"Therefore, the period of employment started on 3 May 2023, stopped between 6 November 2023 to 14 March 2024 which are not counted in determining the employment period, then resumed from 14 March 2024 to 1 June 2024. [The worker] has been employed with [the employer] for 8 months, meeting the minimum [requirement]."
This decision highlights the importance of clear communication and documentation in employment relationships, especially regarding periods of absence and termination processes.
The FWC also noted:
"Although [the worker] and [the employer] stated that there would no further engagements after 6 November 2023, it does not reset the minimum employment period. It is simply not counted until the employment recommences."
This interpretation provides guidance for both employers and employees in similar situations.
Lastly, the commission emphasised the significance of proper termination procedures:
"[The worker] was not made aware of the Termination Form completed by [a manager] or [another manager] completed on 14 November 2023. There was no indication that [the worker] was given notice that her resignation was accepted on 6 November 2023 and was seeking to return to work at an unknown date through her email sent on 19 October 2023. [The worker] was not terminated based on abandonment of employment during this period."