Unfair dismissal; minimum employment period

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;

  1. The unpaid internship from 16 November 2021 to 25 February 2022 (the First

Period)

  1. The unpaid self-directed learning from mid-March to September 2022 (the Second

Period)

  1. 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

8

[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

  1. 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