FWC: Overseas trip does not break continuity of employment in unfair dismissal case

Minimum duration of employment and continuous service

The case concerned the employee’s claim for unfair dismissal and the employer’s jurisdictional objection. The employer argued that the employee had failed to meet the minimum six-month employment period required to benefit from protection against unfair dismissal.

The FWC examined the worker’s employment history, which ran from May 3, 2023 to November 6, 2023, and then again from March 14, 2024, until the end of the contract on June 1, 2024. The commission had to determine whether this was continuous service.

The interpretation of continuous service, as described in a previous decision of the Full Court, was a key consideration:

“The continuous service of a casual employee who has an established sequence of engagements with an employer is not interrupted until either the employer or the employee clearly indicates to the other party, by words or actions, that there will be no further engagements. Intervals between individual engagements in a sequence of engagements are not to be regarded as an interruption of the employee’s period of continuous employment within the meaning of section 384.”

Unpaid leave and continuity of employment

The FWC determined that the period between November 6, 2023 and March 14, 2024 should be considered unpaid leave or authorized absence without pay. This interpretation was important in maintaining the continuity of the worker’s employment.