Unfair dismissal protection; what is a month?

To be protected from unfair dismissal, an employee must inter alia have been employed for at least 6 months if the employer is not a small business and at least 12 months if the employer is a small business. What is a month for the purposes of that calculation?

“Minimum Employment Period

The correct approach to the calculation of the minimum period of employment is to ascertain the actual period of employment between the commencement date of employment and the time when the person is given notice or immediately before dismissal. 5

In Wilkinson v Skippers Aviation Pty Ltd, the Full Bench stated the interpretation of the meaning of “month” is a calendar month. That is a period commencing at the beginning of a day of a month of the year and ending immediately before the beginning of the corresponding day of the month following. 6 This interpretation was applied in the decision of Prigg v Manheim.7 I see no reason why the Full Bench’s reasoning should not apply to a minimum period of employment as stipulated at s.383 of the Act. Section 22(1)(b) and (g) of the Acts Interpretation Act 1901 (Cth), as was in force on the day on which the Act commenced, being 26 June 2009, applies to the calculation of the minimum period of employment as it applies to any other similar such statutory time period, provided no contrary intention is demonstrated.

It is uncontentious that the Applicant’s period of employment with the Respondent began on 2 March 2020. On the Full Bench’s reasoning, the minimum period of employment must be completed “immediately before the beginning of” 2 March 2021, which is immediately before the beginning of the corresponding day of the twelfth month following the date on which the Applicant’s employment commenced.”

Extract from Sherman v NYK Forklift Services delivered [2021] FWC 4148 delivered 14 July 2021 per Lake DP