Under the Fair Work Act 2009 (the “FW Act”) one of the conditions an employee must satisfy to bring an unfair dismissal claim is that they have completed a period of continuous service at least equal to the minimum employment period. For businesses other than small businesses, the minimum employment period is six months. A recent decision of the Fair Work Commission (the “FWC”) confirms that unpaid authorised absences will not count when calculating an employee’s period of continuous service.

Background

A second-year law student was dismissed as a result of failing to receive a COVID-19 vaccination. The employee sought to make an unfair dismissal claim and argued that at the time of her dismissal she had been employed for a period of six months and one day. Her employer, a national law firm, submitted that the employee was not protected from unfair dismissal as she had not completed the minimum employment period of six months due to her unpaid authorised absences.

Over the course of her employment the employee had taken a total of 24 days’ leave, which was a combination of paid and unpaid leave. This included five days of unpaid leave to sit her university exams. The employer submitted that these five days, along with other authorised unpaid absences, could not be counted when calculating the employee’s period of continuous service.

The employee submitted that she had completed the minimum employment period despite the absences, arguing that her absences for law exams had actual or potential benefit to her employer. Further, the employee argued that she did not consent to her absences being characterised as unpaid leave as it would have been possible for the leave to be taken as annual leave instead.

Outcome

The FWC found that the employee was unable to bring an unfair dismissal claim as she had not been employed for the minimum employment period.

The five days of absence taken by the employee to sit her law exams were authorised unpaid absences and therefore were excluded when calculating the employee’s period of continuous service. The FWC took into consideration that the employee had categorised this period as “leave without pay” on her leave application request. Further, the FWC held that any benefit derived by the employer from the employee sitting her law exams was irrelevant when determining whether the leave was an unpaid authorised absence.

The FWC deducted the five days of absence taken by the employee to sit the law exams from the period of six months and one day. This resulted in the employee being below the six-month minimum employment period required to make an unfair dismissal application. As a result, the employee was ineligible to bring an unfair dismissal claim against her employer.

Kirryn West James, Director