By Gaby Grammeno Contributor
The worker was employed with the operator of a resort on an island in the Great Barrier Reef. She worked there for six months from 3 May to 6 November 2023 and told her employer she planned to travel overseas after that date. She emailed management to let them know her departure and return dates.
On returning from her trip, she enquired about her role at the resort and received a new employment contract. She rejoined the employer from 14 March 2024 until her employment was terminated on 1 June 2024 – a three-month period.
The worker applied to the Fair Work Commission claiming unfair dismissal, but her employer raised the objection that she was not protected from unfair dismissal as she did not meet the minimum employment period. The resort operator was not a small business employer, meaning the relevant minimum employment period is six months.
In the Commission
The relevant period of employment is calculated in accordance with s 384 of the Fair Work Act 2009, which states that it’s the period of continuous service the employee has completed with the employer.
However, a period of service as a casual employee does not count towards the person’s period of employment unless it was as a regular casual employee, and during that time, the person had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.
Deputy President Nicholas Lake was satisfied that the worker met the minimum employment period. The period between 6 November 2023 to 14 March 2024 was period of unpaid leave or unpaid authorised absence which, under s 22 of the Fair Work Act, doesn’t count as part of the period of service, but doesn’t break the worker’s ‘continuous service’ with the employer.
The termination of a worker’s employment only takes effect when the worker is put on notice. The Fair Work Act’s Explanatory Memorandum states that the minimum employment period is assessed either when the person is given notice of the dismissal, or when the dismissal actually takes effect, whichever happens first.
Deputy President Lake said that though both the worker and the employer stated that there would no further engagements after 6 November 2023, ‘it does not reset the minimum employment period. It is simply not counted until the employment recommences’.
‘The exception would be if there was a clear termination or resignation. This is not the case here.’
The worker was not made aware of the termination form completed by management on 14 November 2023. Nor was she given notice that her resignation had been accepted on 6 November 2023 or acknowledgment that she had informed them by email on 19 October 2023 that she was seeking to return to work at an unknown date.
She was not terminated based on abandonment of employment during this period.
The Deputy President concluded that the worker had been employed with the company for eight months, meeting the minimum employment period, so the employer’s objection was dismissed. The matter will be listed for hearing to determine its merits.
What it means for employers
When considering whether a worker’s employment period meets the minimum requirements for protection against unfair dismissal, employers need to be aware that periods of unpaid leave or unpaid authorised or unauthorised absence do not break a period of ‘continuous service’, they merely interrupt it.
The case also highlights the need for proper documentation and notification of termination.
Read the decision
Ms Sierra Solomon v Aldesta Heron Island Pty Ltd - [2024] FWC 2272
