Is pre-employment training counted in a minimum employment period?

In a recent unfair dismissal application, an airport screening officer’s employment period was found to include pre-employment training.

The applicant filed a claim of unfair dismissal after being dismissed on 16 July 2020. He claimed his employment spanned six months and 10 days.

His employer objected to the application, arguing that the applicant’s employment did not commence until after he had completed mandatory training, and therefore did not meet the minimum employment period.

According to s 382 of the Fair Work Act 2009, a person is protected from unfair dismissal if, at the time of dismissal, the person has completed at least the minimum employment period – in this case, six months.

The employer called for the applicant’s employment period to be reduced due to several instances. These included 11 days of mandatory training prior to commencing work and a week whereby the applicant was employed in an alternative role as a social distancing ambassador. The applicant rejected these submissions.

The employer stressed that regular and systematic employment needed to exist continuously over at least six months, rather than at specific points, to meet this minimum period for unfair dismissal.

Further, the employer asserted that reductions in the frequency of work performed as a result of COVID-19 travel restrictions should lead to a finding that employment was not regular nor systematic.

Conversely, the applicant asserted that, although travel restrictions had reduced the amount of available work, his employment nevertheless continued on a regular and systematic basis.

The Commission found that the applicant’s training, which was a precursor to working in the role, should be included in the period of employment. Further, no basis was found to deduct the time during which the applicant worked as a social distancing ambassador.

The Commission did deduct three days whereby the applicant took unpaid leave, bringing the applicant’s employment period to six months and seven days.

With this, the applicant was found to be protected from unfair dismissal and the matter was listed for further hearing.

Key Takeaways for HR

• In circumstances where prior training is a necessary precursor to performing a role, this training should be included in the employment period
• Despite reduced work as a result of COVID-19, employment may still be considered ‘regular and systematic’ for the purpose of unfair dismissal