How long does an employee have to be employed before they’re eligible to make an unfair dismissal claim?  The short answer is “that depends on the size of your business.”  If you’re a small business, the employee will have 12 months before they can claim eligibility. If you employ more than twelve employees, they will only have six months. But how is that six months calculated?

In Emma Wells v ABC Blinds & Awnings [2016] FWC 8260 the worker was employed between 4 February 2016 and 4 August 2016. She was originally engaged as a casual employee for the first three months and was later offered a permanent position, which she retained for another three months.

It’s important to note that during her casual employment, the worker worked regularly on a roster based system and took two days of unpaid leave within this period. 

The worker was sacked shortly after arriving at work on 4 August 2016 – exactly six months after her first day of work with the Employer.

The Employer argued that 1) the Applicant’s service as casual employee should not be included when calculating continuous service and 2) if the casual employment were deemed to be included, her continuous service would not add up to six months as she had taken two days off during that time. 

The Fair Work Commission found that the Applicant’s employment was regular and systematic and therefore it could be included as part of her continuous service.

However, in light of the unpaid leave taken during her casual employment, the Applicant was found not to have served the minimum employment period, meaning she was not a person protected from unfair dismissal and her application was dismissed.  

So what are the lessons here?

  1. A worker’s casual employment may be classified as continuous service for the purposes of the unfair dismissal laws depending on the regularity of their work schedule and also their expectations of future employment.

  2. Any unpaid leave taken during casual employment will not break an employee’s continuous service, but it will also not contribute their continuous service with an employer.

If this all sounds too confusing and overwhelming, never fear! Call one of the workplace relations lawyers at Nevett Ford on (03) 9614 7111 for advice and assistance on all of your employment law matters.