Unfair dismissal; qualifying period for protection

A period of unpaid personal leave taken by an employee during his or her employment will not count towards the length of continuous service which the employee has undertaken for the purposes of determining whether the employee is protected from unfair dismissal.

“Consideration

A probationary period within an employee’s contract, and the minimum employment period Mr Brethouwer is required to have met to be a person protected from unfair dismissal, are not one and the same. Regardless, there is no evidence before me that suggests Mr Brethouwer’s contract proposes that any period of unpaid leave should be counted towards a period of continuous service with his employer.

An employee’s period of employment is defined in s.384(1) of the Act as being a period of continuous service the employee has completed with the employer at the time as an employee.

The minimum period of employment is assessed on the basis of “continuous service”, which is defined in s.22 of the Act. Section 22(2)(b) provides that a period of unpaid leave does not count as service. It is irrelevant as to when Mr Brethouwer applied to take the leave, as the relevant consideration is the time during which the leave was taken.

While the Act does not contemplate when an employee has notified of their intention to take leave, the Act specifically deals with when the period of leave has been taken. In the current matter, when the intention to take a period of leave was notified by Mr Brethouwer and agreed upon by CSF is irrelevant to the determination of whether or not Mr Brethouwer had completed a the minimum period of employment required to be a person protected from unfair dismissal.

Conclusion

Whilst the period of unpaid leave that Mr Brethouwer took does not break his continuous service with CSF, the period of leave does not count towards the length of his continuous service with CSF (s.22(2)(b)). Therefore, Mr Brethouwer’s total period of employment was less than six months. I find that Mr Brethouwer has not served the minimum employment period and is therefore not a person protected from unfair dismissal.

Accordingly, the application is dismissed. An order to that effect will be published with this decision.”

Brethouwer v CSF Financial Services Pty Ltd T/A My Life My Advice (2019) FWC 7696 delivered 8 November 2019 per\- Harper-Greenwell C