Ex-employee claims unfair dismissal but company insists she had not completed minimum period of employment
The Fair Work Commission (FWC) recently ruled over an unfair dismissal claim where the employer challenged the application because the employee had not completed the minimum employment period of six months for eligibility. The latter argued some of the absences were for the employer’s benefit.
The employee was a full-time receptionist and legal assistant for a Sydney-based national legal practice. She was dismissed for failing to comply with a direction that required a COVID-19 vaccination.
She then filed before the FWC for unfair dismissal but the employer raised a jurisdictional objection since she had not completed the six-month minimum employment period (MEP) required to apply.
The employer also said that she was absent for 24 days during her employment, and her service had periods of unpaid, authorised absences “excluded from the period of service” under the Fair Work Act.
The employee said she was eligible because she was employed for “six months and one day.” She argued that she was absent from work for six days to take her mid-year law exams, which has a “benefit or potential benefit” for her employer.
The FWC found her absences to take the law exams were “unpaid authorised absences.”
It explained that an absence for her “tertiary education” was not counted as “service” because it was “not community service leave, nor a stand down nor absence of a kind prescribed by the regulations.”
The FWC rejected her submission that her examination days should not be excluded in counting her period of service. The FWC also found it “irrelevant” to decide if it “had an actual or potential benefit” to her employer. It said the purpose of an employee’s absence should strictly follow the FW Act.
Thus, it ruled that the employee served less than six months and was not protected from unfair dismissal. The decision was handed down on 31 January.
