Protection from unfair dismissal; length of service Part 1

There are a number of conditions which an employee must meet to be protected from unfair dismissal under the Fair Work Act 2009. These are to be found in sec 382 of the Act.

The first condition is that the person must be an employee who has completed a period of service with his or her employer of at least the minimum employment period which sec 383 provides to be 6 months if the employer is a small business employer and one year if not. Sec 384 defines an employee’s period of employment at a particular time to be the period of continuous service the employee has completed with the employer at that time as an employee.

Special rules apply to casual employees (see sub-sec 384(2)) and also to employees who are transferring employees when there is a transfer of business (see sub-sec 384(2)(b). For example if during the employment of an employee, there is a transfer of business (see sec 22) between associated entities, the employee’s continuous service will be deemed to be uninterrupted by the change in the legal identity of the employer but if the old employer and the new employer are not associated entities and the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised, the period of service with the old employer will not count towards the employee’s period of employment with the new employer.