WorkPac v Bambach

What counts as service?

Many employment benefits are linked to how long someone has worked for their employer. But a new ruling by Fair Work Australia (FWA) demonstrates that an employee doesn’t necessarily have to be “at work” to have completed service.

The ruling arose in a case where an employee had claimed unfair dismissal. The employer argued the employee had not served their six months qualifying period. This was so, the company said, because for a significant proportion of the six months, the employee was on workers’ compensation.

But FWA disagreed. A full bench, headed by new President Justice Ross, found that the employee’s time off on workers compensation counted as service, just as if he had been right there on the job. FWA went on to say the same applied to time off for jury service or any number of other paid leave situations.

This decision has implications for many employers who assumed that absences from work on account of workers’ compensation did not count as service. It also makes qualifying period assessments fraught, where say six months is the limit but theoretically, an employee could be injured on their first day and serve their six months at home.