FWC clarifies length of service for terminated casuals accessing unfair dismissal
The Fair Work Commission has rejected an employer’s claim that absences from a reduced working week and the occurrence of public holidays should be considered when determining whether a casual employee has achieved the minimum employment period of six months required to access unfair dismissal.
The employee had commenced employment on 1 September 2020 until she was advised of her termination, on and with an effective date of 15 March 2021.
As explained in initial discussions with the parties, Commissioner Jennifer Hunt referred to the Commission’s Unfair dismissals bench book, which explains that a `month’ refers to a calendar month. Thus, it appeared that the employee had been engaged for a period of six months and two weeks for the period from September to March.
However, the employer claimed that the employee had failed to meet the minimum period due to unauthorised or unpaid absences amounting to more than two weeks, reducing her service period to less than six months.
The employer’s primary argument was that from 20 November 2020, the employee went from working five days per week to working four days per week, and this reduction should impact her length of service.
However, the argument was rejected by Commissioner Hunt. As she commented in her decision,
“I do not consider that the Fridays she was not required to work constituted a period of unauthorised absence, unpaid leave or unpaid authorised absence. Simply, she worked four days per week, however as each week rolled around, all seven days of the week counted towards her period of continuous service. Service does not stop on account of the weekend or the Friday not required to be worked”.
Consequently, Commissioner Hunt determined that the employee had been employed for a period of more than six months and therefore had completed the minimum period of employment pursuant to section 383(a) of the Fair Work Act 2009.
The unfair dismissal application will proceed before the Commission.
For queries about casual employees or any other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 or via email to firstname.lastname@example.org
Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.