When does a brief break in employment impact workplace rights?
The Fair Work Commission (FWC) recently dealt with an unfair dismissal claim that questioned whether a worker maintained continuous service after resigning and being re-employed by the same organisation within a month.
The worker argued that his employment should be considered continuous despite a brief gap between positions. He pointed to internal documentation suggesting a planned transfer and maintained that his role change was part of a coordinated transition within the organisation.
The parties’ dispute explores questions about what constitutes continuous service under section 384 of the Fair Work Act 2009, which requires six months of continuous service before a worker can claim unfair dismissal protection at larger organisations.
The worker started as a casual bus driver at mining sites in Queensland's Bowen Basin in July 2022. His employment record included two final warnings for speeding violations in June 2023 and March 2024.
Seeking to move closer to Western Australia, he expressed interest in working at the Olympic Dam mine site in South Australia.
The organisation's talent acquisition officer wrote a letter to help the worker obtain his South Australian bus driver's licence, stating he was being transferred to Olympic Dam. However, when questioned during the hearing, she explained:
"[The letter] was written solely to assist [the worker] to obtain a South Australian licence... neither was a position open in South Australia at the time nor had she promised (or had the authority to promise) [the worker] that he would fill a vacancy if one arose."
In June 2024, the worker took approved unpaid leave until September 2024. During this period, another speeding incident led to a show cause meeting with his Queensland manager on 2 August 2024. Before hearing the employer's decision, he submitted his resignation.
That same day, after the worker's resignation, the employer advertised a new position in South Australia. The worker applied through the standard recruitment process and secured the role, starting work on 22 August 2024.
The Commission examined whether this 20-day gap constituted a break in service. Their findings were clear: "[The worker's] resignation was unequivocal. It was not a 'resignation' from work in Queensland to South Australia to take up a transfer, but an unqualified 'resignation, effective immediately'."
The Queensland manager completed a separation checklist after the resignation, marking "no" and "misconduct" in response to whether they would re-employ the worker.
However, this information was not shared with the South Australian hiring manager, who subsequently employed the worker without knowledge of his previous employment record.
The Commission determined: "Having found that [the worker] was not in fact transferred to South Australia from Queensland, the twenty-day gap period was not a 'period of employment'; rather, it was a period between employment."
After starting his new role, the worker faced dismissal on 4 October 2024 following new speeding incidents in September 2024. The Commission explained:
"Because [the worker] resigned from earlier employment with [the employer] on 2 August 2024, a gap period of twenty days existed before he was separately re-employed... As this period was less than six months, [the worker] was not, at the time of dismissal, a person protected from unfair dismissal."
While noting administrative oversights in the hiring process, the Commission concluded: "The errors made by [the employer] were clearly avoidable and explain [the worker's] sense of grievance. Those errors do not, however, allow the gap period to be characterised at law as something which it was not."
The Commission dismissed the application, finding the worker had not served the minimum employment period required for unfair dismissal protection.
