Minimum employment period needs to be calculated carefully

An employee lost her unfair dismissal bid because she mistakenly understood her minimum employment period let her through the gate. That period depends on the size of the employer, so will be either six or 12 months, but the principles to determine eligibility are the same.

In this case, the employee had been on the books of a large business for six months and 17 days, ostensibly having served the minimum period. However, after about four months or so, following an issue with a client, she was requested to cease attending a particular work location and offered work elsewhere, nearby. This circumstance was contemplated clearly in her employment contract.

The employee did not attend work as she declined to take up any of the alternative postings. Her employer corresponded with her several times subsequently, and advised her absence was unauthorised, as she had been offered alternatives and not taken any up. The company ultimately dismissed her for failing to front.

On the day of her dismissal, the employee presented doctor’s certificates covering some of the time of her absence which the employer claimed never to have seen until that point. However in total these accounted for only nine days and there was no evidence that they had been submitted while the employee was still employed.

The FWC said even taking the most generous approach to the claimed sick leave, the rest of the unauthorised absence took the employee well back from the six months threshold. This cautious approach was necessary because the employee would have needed sufficient sick leave credits for the leave to be ‘authorised’. Without that accumulated leave available, the employer would have had to grant unpaid sick leave. Had that been so, it wouldn’t have counted as service anyway.

In this case the FWC made the point that the evidence clearly showed the employer considered the absence to be unauthorised. The FWC summarised the approach to these matters thus:

“The combined effect of sections 22, 382, 383 and 384 of the FW Act mean that time absent from work on unpaid leave or unauthorised leave does not count towards the period of employment for the purposes of the calculating the minimum employment period.”

Most employers appreciate an unauthorised absence is not service. They endeavour to act consistently with that circumstance by ensuring it is reflected in service-related employment entitlements and, critically, employee records. But it can be overlooked that unpaid leave, with very few exceptions, will fall into the same category. For dismissals, length of service is a jurisdictional fact and employers are entitled to insist on that being actual service according to law.

Sesay v Connecting Families Disability Services Pty Ltd [2022] FWC 2392 (8 September 2022)

By Ross Clarke & Shane Coyne