Start date dispute impacts worker's dismissal claim

Case shows why employment records and timing matter for employers

Start date dispute impacts worker's dismissal claim

The Fair Work Commission recently dealt with an unfair dismissal claim where a worker argued he qualified for unfair dismissal protections based on his length of service at a small business.

The worker presented his employment contract dated 20 November 2023 to establish his start date. His employer, however, relied on pay records and email correspondence to show the employment relationship didn't begin until 29 November 2023.

When a motorcycle accident led to an extended period of unpaid leave, questions arose about how this absence affected the worker's service calculations under the Fair Work Act 2009.

Background of the case

The matter began when the worker filed an unfair dismissal application on 25 November 2024 after his employment ended on 22 November 2024. Section 396 of the Fair Work Act 2009 requires the Fair Work Commission to first determine whether someone qualifies for unfair dismissal protection before examining the dismissal itself.

The employer operated with 10 employees at the time, including two owners. Under section 23 of the Fair Work Act 2009, they qualified as a small business since they employed fewer than 15 people.

For small businesses, workers must complete one year of continuous service to access unfair dismissal protections, compared to six months for employees at larger organisations.

Employment records determine start date

The employment contract showed different signing dates, with the Fair Work Commission noting: "The contract was signed by [the employer] on 20 November 2023 but not signed by [the worker] until 29 November 2023."

Email evidence provided by both parties showed the employer suggesting a 27 November 2023 start date. The Fair Work Commission observed this "indicated that his employment did not start on 20 November 2023."

The pay records strengthened the employer's position. The Fair Work Commission stated: "Pay records provided by [the employer] show that the first pay made to [the worker] was on 6 December 2023... [the worker] would not have started any earlier than 29 November 2023 as he was not paid earlier than this date."

Leave period impacts service time

The employer presented medical certificates and email correspondence documenting the worker's absence following his motorcycle accident. These records showed the worker "did not attend for work from 10 May 2024 until Thursday 18 July 2024, a period of 2 months and 9 days."

The FWC outlined how leave affects service calculations: "Under s 22(2)(b) of the Act, periods of unpaid leave or unpaid authorised absence do not count towards service, except for those situations listed in s 22(b)(i), (ii), and (iii), respectively being (i) community service leave, (ii) a period of stand down or (iii) other leave prescribed in the regulations."

The worker's unpaid leave didn't fall under any of these exceptions.

Commission dismisses unfair dismissal claim

In dismissing the application, the Fair Work Commission highlighted two timing issues: "This is 7 days fewer than the one year required by s 383(b) for a small business employer. Furthermore, [the worker's] period of service is reduced by 2 months and 9 days due to the period of unpaid leave from May until July 2024."

These factors led to their conclusion that "[the worker] is not a person who is protected from unfair dismissal as he did not complete the minimum period of employment of one year with [the employer]. This is because his employment did not start until 29 November 2023 and his employment ended on 22 November 2024."

Following this determination, the Fair Work Commission ordered the unfair dismissal application be dismissed.