Not all types of work for an employer count towards meeting the qualifying period of employment to be protected from unfair dismissal; thus
“Consideration
[30] Mr Grief relies on three distinct periods he says should be taken into account to establish
that he meets the minimum employment period required to make an Unfair Dismissal
Application. Those employment periods Mr Grief submits the Commission should consider as
being continuous in nature are;
- The unpaid internship from 16 November 2021 to 25 February 2022 (the First
Period)
- The unpaid self-directed learning from mid-March to September 2022 (the Second
Period)
- The Graduate Engineer project placement role from 19 September 2022 to 2 March
2023 (the Third Period).
The First Period
[31] Mr Grief argues his internship counts towards a period of employment with Penguin
Composite. It is not in dispute that Mr Grief’s Internship was governed by an Internship
Agreement. Although the Internship Agreement submitted as evidence was unsigned Mr Grief
did not challenge its legitimacy orsubmit that the Commission should not rely upon its contents.
[2023] FWC 1362
7
[32] The Internship Agreement sets out in detail the purpose of contractual relationship for
an Engineering Internship position which was to be undertaken on a voluntary basis by the
Intern, Mr Grief.
[33] The Internship Agreement specifies the internship is for a fixed period of 12 weeks. The
Internship Agreement further specifies that whilst engaged as an Intern, Mr Grief was not
entitled to receive a salary, or any other benefits associated with employment. The Internship
Agreement specifies it is not intended to create an employment relationship.
[34] Mr Grief evidence was consistent with the terms of the Internship Agreement. He did
not receive a salary or other statutory entitlements during his internship engagement with
Penguin Composites. Mr Greif’s evidence is that he was required by the University of
Tasmania to complete an internship as part of his undergraduate degree.
[35] The contractual terms of the Internship Agreement evidence Mr Grief’s role during the
First Period to be an internship position, was not paid and not intended to create an employment
relationship. This is consistent with Mr Grief’s own evidence. I am not persuaded that Mr Grief
was an employee at the time he was completing his unpaid internship with Penguin Composites.
Therefore, the First Period does not count towards his service with Penguin Composites as he
was not an employee as defined by section 13 of the Act. It stands to reason that the Internship
is not a period of employment that can be relied on by Mr Grief for the purposes of the statutory
minimum employment period required to make an unfair dismissal application. If my findings
are wrong on this matter, for the reasons set out below if I was to take the time Mr Grief was
engaged as an intern into consideration, Mr Grief still has not served the minimum employment
period under section 383 of the Act and accordingly is not a person protected from unfair
dismissal under section 382 of the Act.
[36] The Second Period Mr Grief seeks to rely on to satisfy the minimum employment period
under section 383(a) of the Act is an unpaid period from mid-March 2022 to September 2022
(Second Period). During the Second Period Mr Grief conducted research to advance his own
professional development and to gain his own intellectual property. Mr Grief produced reports
he had written that he sought to rely on as evidence of an ongoing employment relationship.
Mr Grief’s oral evidence was that he had produced the reports at his own initiative as part of
the development of his own capabilities and that the reports were not produced at the direction
of Penguin Composites. Further, Mr Grief had at no stage provided the reports to Penguin
Composites. Mr Grief did not receive any monetary compensation. Mr Grief’s evidence
outlined his desire to develop his capabilities which informed his decision to not be engaged as
an employee during the Second Period. In his “Contract statement” dated 25 June 2020, Mr
Grief states that he has been working independently to develop his capabilities and sought to
negotiate terms of an employment contract for future employment.
[37] The evidence before me does not support a finding that for the Second Period Mr Grief
was a national systems employee in s far as he was employed by a national systems employer
(as described in s.14 of the Act). Therefore, the Second Period cannot be relied on to establish
that Mr Grief has met the minimum employment period under section 383(a) of the Act.
[38] I find that Mr Grief commenced employment with Penguin Composites on 19
September 2022. Mr Grief commenced a period of unauthorised leave of absence on 25
November 2022.
[2023] FWC 1362
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[39] Section 384 provides that an employee’s period of employment is the period of
continuous service with the employer. The ordinary meaning of ‘continuous service’ is the
period of unbroken service by an employee with an employer.1 The meaning of ‘continuous
service’ is however affected by section 22 of the Act. The effect of section 22 is that certain
periods (e.g. unauthorised absence and certain unpaid periods of leave) do not count towards
the length of the continuous service.
[40] Mr Grief submits that clause 9.3 of his employment contract provides for the taking of
unpaid leave at any time and that the provisions of the contract supersede any company policy
in relation to absenteeism. Clause 9.3 of Mr Grief’s employment contract provides the
following:
“Unpaid leave may be taken in order to further professional development. Any work
done in this time is not covered in this contract. There is an expectation of dialogue
before and during these periods of disengagement from paid work. This dialogue will
serve to guide both parties to a path of mutual benefit.”
[41] Whilst it is not necessary for me to make a finding on whether the disputed contract
term is a provision that allows Mr Grief to take unpaid leave at his own initiative. I make the
following observations. Clause 9.3 provides for an agreement to take unpaid leave for the
purposes of further professional development. Mr Grief took unauthorised unpaid leave as a
form of protest against being supervised by the Defence Engineer in the course of his work, and
not for the purpose of further development. Irrespective of the interpretation of clause 9.3 a
period of unpaid leave does not count towards an employee’s length of service for the purposes
of s.382.
[42] Section 382 of the Act provides that a person is protected from unfair dismissal if they
have completed at least the minimum period of employment. Mr Grief commenced his
employment with Penguin Composite on 19 September 2022. Mr Grief took an unauthorised
period of unpaid leave from 25 November 2022 until his dismissal which took effect on 2 March
- Therefore, Mr Grief continuous service that counts for the purposes of the minimum
employment period is 2 months and 6 days.
[43] Section 383 of the Act sets out the minimum employment period being 6 months as
Penguin Composite is not a small business employer. For the reasons set out above, I am
satisfied that Mr Grief has not completed the required minimum employment period.
[44] As Mr Grief has not completed the required minimum employment period under the Act
the application has no reasonable prospects of success. Consequently, the application is
dismissed. An order dismissing Ms Grief’s application will be issued with this decision.”
Passage from Grief v Penguin Composites Pty Ltd [2023] FWC 1362 delivered 6 July 2023 per Harper-Greenwell C