FWC rejects unfair dismissal claim ruling employee failed to serve minimum employment period

FWC rejects unfair dismissal claim ruling employee failed to serve minimum employment period

FWC rejects unfair dismissal claim ruling employee failed to serve minimum employment period

The Fair Work Commission has rejected an unfair dismissal claim on the basis that several periods of unpaid leave taken by the employee meant she failed to serve the mandatory minimum employment period required before the Commission can adjudicate a termination.

The female employee ‘IC’ commenced employment on 5 July 2022 with Loddon and Mallee Housing Services (LMHS) until her termination, which took effect on 16 January 2023.

LMHS initially objected to the application claiming that IC had not served the minimum period of six months, as defined under the Fair Work Act 2009 (the FW Act), having commenced employment on 5 July 2022.

The employer contended that IC had taken various periods of unpaid leave, which should not be counted as continuous service, thereby extending the minimum employment period in her case. In particular, LMHS argued that 15.53 days of unpaid leave taken during her employment meant “the Applicant’s minimum employment period required to qualify for protection from unfair dismissal would have expired on 26 January 2023”, a week after her termination.

The relevant provisions of the FW Act at Section 22(2)(b) state that a period of service does not include “any period of unpaid leave or unpaid authorised absence”.

In reviewing her employment history, Commissioner Nicholas Wilson noted the following periods of unpaid leave granted to the employee:

  • 18 July to 22 July 2022, 5 days
  • 2, 9, 16 and 30 September 2022, 4 days of unpaid Family and Domestic Violence Leave
  • 8 December 2022, 4 hours of unpaid leave
  • 21 December until 23 December 2022, 3 days of unpaid leave
  • 28 December until 30 December 2022, 3 days of unpaid leave (totalling 15.53 days).

Neither party contested that all leave was sought and approved and approved in accordance with LMHS processes and policies.

In supporting her argument, IC submitted that some of the leave taken should have been discounted from her leave accruals, as well as arguing that Family and Domestic Violence leave was a ‘period of leave prescribed by the regulations’.

Commissioner Wilson disagreed, noting,

“Ms (C) also took periods of unpaid leave summarised above; being several periods of leave without pay and four separate days of Family and Domestic Violence Leave, which at the time was a legislated entitlement to unpaid leave. None of those periods of leave are counted as service for the purposes of s.22 of the FW Act. Each was a period of unpaid leave and was not ‘a period of leave as prescribed by the regulations’.”

Consequently, Commissioner Wilson noted,

“The consequence of this finding is that the minimum employment period for Ms (C) to be a person protected from unfair dismissal is the period of 6 calendar months added to the 15.53 days determined as above; that is Friday, 20 January 2023. Given that Ms (C) was dismissed by LMHS with effect on 16 January 2023, she had not completed a period of employment of at least the minimum employment period”.

Commissioner Wilson dismissed the application.

Imogen Corrie v Loddon Mallee Housing Services Ltd [2023] FWC 858 (12 April 2023)

For queries about minimum employment periods, employee dismissals, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

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.

Ref: 377.0823

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