Fair Work Commission considers the difference between resignation and termination

02 September 2021

Fair Work Commission finds a five-day break between resigning from a fixed-term position and working a casual shift was not a ‘break in service,’ opening a claim for unfair dismissal.

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Throughout the period of 22 February 2018 to 29 January 2021, an employee was engaged by the business as a casual before being engaged under several fixed term contracts. The employee reverted to a casual position before again being engaged on a permanent full-time basis. 

On 29 August 2020, the employee resigned from her permanent position. However, the employee worked as a casual some 5 days later on 3 September 2020 and continued to do so until 30 November 2020. On 1 December 2020, the employee commenced a permanent position.  

The employee was subsequently dismissed on 29 January 2021.  

Following the dismissal, the employee lodged an unfair dismissal claim. The business defended the claim raising the objection that the employee had not completed six months’ service prior to dismissal and was therefore prevented from making an unfair dismissal claim. 

The decision 

The key question for the Fair Work Commission (FWC) was whether the employee had completed six months' service immediately prior to dismissal. 

The FWC considered that on the day the employee resigned from her permanent role, she had reached an agreement with the business to be rostered on a casual basis. The FWC was satisfied the employment status of the individual had not changed, albeit changed from a full-time employee to a casual one.  

The FWC confirmed the change did not break the employee’s service and the employee had been continuously employed for at least six months. The employee was protected from unfair dismissal and was eligible to pursue the claim.  

The matter was listed for further directions and will be listed for a hearing.  

Learnings for business 

This case highlights the importance of carefully considering the circumstances and consequences of re-engaging employees, particularly where an employee has been engaged on several fixed-term contracts, or transitions to or from a casual role. 

Businesses need to ensure records are up to date and need to have processes in place to review contracts before they expire. Businesses must also ensure advice is taken where there is uncertainty as to length of service, especially if they are considering dismissal. 

How Victorian Chamber can help 

Under current employment legislation, costly consequences await organisations found to be recruiting, managing or terminating staff incorrectly.  

For assistance on any aspect of your employment obligations, please call the Victorian Chamber Workplace Relations Advice Line on (03) 8662 5222.

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