Friday, 28 August 2020

What will break a period of continuous service mean when calculating service for an unfair dismissal application?

The following periods will break an employee’s continuous service with their employer and may result in a new period of employment for re-engaged employees:
  • resignation
  • dismissal, or
  • transfers of employment which do not meet the definition of a ‘transfer of employment’ in s.22(7) of the Fair Work Act.

Unfair Dismissal
What will break a period of continuous service mean when calculating service for an unfair dismissal application?


CASE EXAMPLES - Continuous service – Transfer of employment

Kefer v Tattersall’s Holdings Pty Ltd [2012] FWA 2375 
(Cambridge C, 23 March 2012) 

The employee was employed by a first employer, then left and within 3 months commenced work for the second employer, which was an ‘associated entity’ of the first employer. 

This was held to be a transfer of employment under s.22(7), so that there was no break in the continuity of service. 

It did not matter whether the employee resigned from employment with the first employer or was terminated by the first employer.


NOT continuous service – Resignation 

Tebble v Rizmas Pty Ltd [2011] FWA 6853 
(Roe C, 5 October 2011). 

The employee was found to have resigned her employment and then returned to work. 

Her resignation broke continuous service and she subsequently commenced a new period of employment.


Need more advice?

If you remain unclear on the unfair dismissal appeal minimum qualification for eligibility, you can call or email Workers First Workplace and Human Rights Advocates for more advice on unfair dismissal procedures in the Fair Work Commission or your relevant State or Territory Industrial Relations Commission or Tribunal.

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