Unfair dismissal rights and length of employment

These passages from an unfair dismissal case before the Fair Work Commission deal with the issue whether a period of suspension of an employee is exempt from a calculation of the length of an employee’s employment when determining whether the employee is protected from unfair dismissal.

“Suspension and the period of continuous service

[78] It is evident from the evidence of Ms Isebe that the Applicant was issued with a letter

of suspension pending an investigation into allegations of misconduct on 21 October 2021

(Suspension Letter).76

The letter informed the Applicant, amongst other matters:

Suspension from work

This letter is to advise that I have been made aware of serious allegations regarding your conduct

towards UWA staff members, which warrant investigation. If substantiated, the allegations may

constitute serious misconduct as defined under Regulation 1.07 of the Fair Work Regulations

2009 (Cth) and a breach of the University of Western Australia’s (University) Code of Ethics

and Code of Conduct (Code).

Given the nature and seriousness of the allegations, and to enable a prompt and fair investigation

to occur, I am directing you to not attend work, while this matter is being investigated.

This direction is effective immediately and will remain in place for the duration of this matter,

unless advised otherwise by me. During this period, you will be excluded from the University’s

workplace and facilities, unless authorised by Human Resources.

Your suspension does not mean that the University has prejudged the allegations against you.

The University will investigate the allegations fairly. Particulars of the allegations will be

provided to you in due course and you will be given an opportunity to respond to and explain

your version of events. You will also be given the opportunity to have a support person in

attendance at any meeting with you regarding the investigation.

You should be aware that the allegations are serious and a finding of misconduct or serious

misconduct may result in disciplinary action, including termination of employment.77

[79] The Suspension Letter referred to a direction ‘not to attend work, while this matter is

being investigated… This direction is effective immediately and will remain in place for the

duration of this matter … During this period, you will be excluded from the University’s

workplace and facilities unless authorised by Human Resources.’

[80] The Suspension Letter was issued to the Applicant two days after his last Lab in 2021.

On first blush, the Suspension Letter might suggest that the Applicant remained an employee

of the Respondent post the conclusion of Semester 2, 2021 and could potentially be further

extrapolated to surmise that the Applicant remained an employee post the conclusion of each

of the teaching periods or semesters from mid-2019 to the latter part of 2021.

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[81] However, the context in which the Suspension Letter was issued requires further

examination.

[82] The Applicant purports that on 19 October 2021, an unknown member of Human

Resources ended his appointment in the Respondent’s personnel and payroll system.

78 By email

dated 20 October 2021, the Integrity and Standards Unit at the Respondent informed the

Applicant that he had allegedly engaged in conduct that contravened the Code of Conduct.

[83] I have traversed the contents of the email dated 20 October 2021. Broadly speaking, the

Applicant was temporarily suspended from the Respondent pending an investigation into his

student conduct.79

By email dated 1 November 2021, the Integrity and Standards Unit wrote to

the Applicant, advising him that the Respondent was in the process of reviewing all available

material to decide about the continuation of the suspension, and that for his information, his

scholarship had been suspended until a decision in the matter had been made.80

[84] Correspondence from the Integrity and Standards Unit dated 14 December 2021 advised

the Applicant that a ‘Student Conduct and Discipline investigation had commenced regarding

these incidents’.81

These incidents were described as ‘serious incidents which occurred in

October 2021 at the Bayliss and Harry Perkins buildings’.82

[85] By letter of 4 March 2022, the Respondent’s Human Resources Director informed the

Applicant that Human Resources was aware of allegations concerning the Applicant’s conduct

on 17 and 18 October 2021, which warranted investigation by the Respondent. The letter

continued:

…You should be aware that the allegations (as set out below) are serious and may result in

disciplinary action against you, up to and including termination of your casual employment as

Research Assistant with the University.83

As you are both an employee and student of the University, the process from Human Resources

will run concurrently with the investigation into the allegations conducted by…Integrity and

Standards Unit…84

[86] Clearly, by 4 March 2022, the Applicant was not employed to facilitate Labs. However,

the Applicant’s alleged misconduct occurred at a time whilst employed to provide Labs – on

17 and 18 October 2021. At that time, he remained in the employ of the Respondent.

Understandably, the Respondent ran parallel investigations into the Applicant’s misconduct

from both the perspective of student and casual employee. This was clearly explained in the

letter of 4 March 2022. Whilst the letter of 4 March 2022 referred to the Applicant as an

‘employee’ and a ‘student’, I am not persuaded that the contents of the Suspension Letter give

rise to an inference or otherwise suggest that between previous semesters (or prior semester

breaks) the Applicant remained an employee of the Respondent. In my view, the contents of

the Suspension Letter are confined to the parameters in which the Applicant was facing

allegations of misconduct, which the Respondent was addressing.

[87] Plainly, when the Respondent issued the Suspension Letter, it considered it was

authorised to direct the Applicant not to attend work while the investigation into the Applicant’s

purported misconduct was on foot. Presumedly, the Respondent considered the direction issued

was lawful and reasonable such that the Applicant was obliged to follow it. Therefore, the

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Applicant’s absence from the workplace arose from the direction issued and was mandated by

the same.

[88] To clarify, in my view, the Suspension Letter, in addition to the evidence provided by

both parties, is not suggestive that the Respondent imparted words or engaged in actions

indicative that the Applicant’s employment had ended when the Suspension Letter was issued.

That did not occur until the issuance of the letter of 1 November 2022, in which the Respondent

notified the Applicant that his employment was terminated effective immediately, in addition

to advising of the outcome of the investigation into his alleged misconduct.85

 

[89] The question therefore is whether the Applicant was on a period of unpaid leave or an

unpaid authorised absence in accordance with s 22(2)(b) of the Act, whilst ‘suspended’. If he

was, the period of absence will constitute an excluded period. Section 22(3) is explicit that an

excluded period does not count towards the length of the employee’s period of continuous

service.

[90] It is apparent that the terms ‘leave’ and ‘authorised absence’ are directed to different

circumstances, otherwise only one type of absence would be specified in s 22(2) of the Act.86

 

Regarding the word ‘leave’, I do not consider the Applicant’s absence as a period of ‘leave’.

‘Leave’ suggests an absence in circumstances where the employee has met the requirements of

a workplace instrument, statute or common law employment contract that entitles the employee

to be absent from the workplace on a period of leave.87

 

[91] It is difficult to conceive that the period of suspension, that is, a period in which the

Applicant was not paid and had been instructed not to attend the workplace, was anything other

than an ‘unpaid authorised absence’, as referred to in s 22(2) of the Act.

[92] The Respondent presses that the Applicant’s failure to perform work during the period

of suspension cannot be sensible characterised as an ‘excluded period’ of the kind that would

preserve continuity of service.88

It says, as a consequence, when the Applicant was notified of

his dismissal, he had not met the minimum employment period, because the Applicant’s service

ceased to be continuous with effect from his suspension.

[93] However, I find that the Applicant’s employment commenced in or around the latter

part of July 2021 or August 2021,

89 when he was appointed as a Demonstrator to conduct Labs

for the second semester of that year. The Applicant’s employment was terminated on

1 November 2022. From the time the Applicant’s employment commenced (noting that his

first Lab for Semester 2, 2021 was worked on 7 September 2021) until 21 October 2021, the

Applicant had, in my opinion, engaged in a period of continuous service. Whilst during this

period the employment was regular and systematic, I do not find that during such period the

Applicant had a reasonable expectation of continuing employment. Post 21 October 2021, the

Applicant remained employed by the Respondent whilst the investigation into his alleged

misconduct was on foot, but the period did not count as service and therefore did not count

towards the Applicant’s continuous service with the Respondent. On this basis, I find that the

Applicant had not completed a ‘period of employment’ of at least the ‘minimum employment

period’.

Conclusion

[2023] FWC 200

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[94] Based upon the above reasons, I have concluded that the Applicant is not protected from

unfair dismissal because he has not completed a period of employment with the Respondent of

at least the minimum employment period. The Applicant’s unfair dismissal application is

therefore dismissed and an Order90 to that effect issues concurrently. ”

 

Micke v University Of Western Australia (2023) FWC 200 delivered 24 February 2023 per Beaumont DP