Was minimum period of employment worked?

Cases

Was minimum period of employment worked?

When it comes to unfair dismissal matters, the Fair Work Commission often has to resolve if a minimum period of employment has been worked. If it hasn't, an employee is not entitled to pursue a claim.

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When it comes to unfair dismissal matters, the Fair Work Commission often has to resolve if a minimum period of employment has been worked. If it hasn't, an employee is not entitled to pursue a claim.

For businesses with 15 or more employees the minimum period of employment is six months: for smaller businesses it is 12 months.

Determining if this period has been worked is sometimes contentious, as these cases indicate.

Common directorships pointed to associated entity


When work with an associated entity in the Philippines was considered, the FWC concluded that common directorships indicated the businesses were related. When the employment periods were added together the minimum period had been worked.

G v Redmako RTO t/a Red Aussie [2015] FWC 8589 - Johns C - 11 December 2015 


Notice of dismissal within minimum period


An employee began work on 2 February 2015 and was notified of her dismissal on 31 July 2015. She continued to work out a portion of her notice period until the actual date of her termination, 21 August 2015. 

The Fair Work Commission ruled the date of dismissal was within the six month minimum period of employment, therefore permission to appeal was refused.

S v King & Wood Mallesons [2016] FWCFB 420 - Catanzariti VP Watson VP Bull DP - 27 January 2016 


Transfer of business and employment carried over


A transfer of employment took place, therefore a worker, who had been employed by the previous employer for more than four years, had met the minimum period of employment.

The Fair Work Commission was satisfied a transfer of business and transfer of employment had occurred within the meaning of the FW Act. The new employer had not informed employees in writing before the new employment started that service with the old employer would not be recognised.

K v BG & BJ P/L t/a Wantirna South Studfield Newsagency [2016] FWC 1074 - Gostencnik DP - 26 February 2016

The bottom line: There are rules determining what counts as the minimum period of employment and these technical points will be assessed in deciding any unfair dismissal application.

See also: Minimum period of employment 

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