A recent consult to a client of mine reminded me of a past industrial case (fed) that occurred way back in 2012 and tested the 6 months of continuous service rule to be eligible to file an unfair dismissal case under section 394 of the Fair Work Act (the Act). But even more specifically with this case, testing section 383 Meaning of minimum employment period and section 22.
The applicant files for an unfair dismissal and claiming that they had been employed by the employer for exactly a 6-month period and to the exact day. The Respondent objects on jurisdictional ground specifically, that the Applicant had not served the minimum employment period under s.382(a) of the Act.
During his employment the applicant took a day’s sick leave. The Respondent provided from its payroll systems, documentary evidence that the Applicant had accrued 6.33 hours entitlement to sick leave.
The Respondent also provided a copy of the Applicant’s payslip disclosing that the Applicant was paid for 6.33 hours of personal leave for the day of absence resulting in an unpaid leave amount of 1.27 hours i.e making up a 7.6 hour working day.
In closing remarks, the Commissioner concluded:
Discounting the period of unpaid leave from the Applicant’s service with the Respondent, means that the Applicant has served a continuous period of 183 days and 6.33 hours which is less than 184 days or 6 months with the Respondent. The Applicant’s application for unfair dismissal fails.
Section 22 of the Act clarifies that unpaid leave is not classified as “continuous service”. In this case the applicant falls short of the 6-month period by 1.27 hours (the unpaid leave event). So, remember:
The 6-month period is made up of “continuous service” only. See (Section 22).
Source: Mr Ashley Wales V 3 Point Motors Pty Ltd T/A 3 Point Motors.
Paul Marshall
Partner | HR Chief | FCPHR
With decades of Business and HR experience a HR Pro, corporate trainer, author and a welcomed and trusted business partner with commercial awareness and expertise in people, performance and HR capabilities .
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