Sarah Prince v The Trustee for Foale Family Trust
[2025] FWC 328
•5 FEBRUARY 2025
| [2025] FWC 328 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sarah Prince
v
The Trustee for Foale Family Trust
(U2024/13946)
| COMMISSIONER SCHNEIDER | PERTH, 5 FEBRUARY 2025 |
Application for an unfair dismissal remedy
On 21 November 2024, an application was made by Ms Sarah Prince (Ms Prince or the Applicant) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy against the Trustee for Foale Family Trust (the Respondent).
In its response to the application, the Respondent indicated that it had a jurisdictional objection, being that the Applicant had not served the minimum employment period as required under section 382(a) of the Act.
Legislation
The initial matter to be dealt with in this application is whether the Applicant is a person who is protected from unfair dismissal, having regard to the minimum employment period under the Act. The relevant statutory provisions are sections 382, 383, and 384 of the Act. Those sections, in part, read:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) …”
“383 Meaning of minimum employment period
The minimum employment period is:
(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:
(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or
(b) if the employer is a small business employer—one year ending at that time.”
“384 Period of employment
(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee. …”
Section 22 of the Act provides the definitions of ‘service’ and ‘continuous service’. That section reads:
“22 Meanings of service and continuous service
General meaning
(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).
(2) The following periods do not count as service:
(a) any period of unauthorised absence;
(b) any period of unpaid leave or unpaid authorised absence, other than:
(i) a period of absence under Division 8 of Part 2‑2 (which deals with community service leave); or
(ii) a period of stand down under Part 3‑5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or
(iii) a period of leave or absence of a kind prescribed by the regulations;
(c) any other period of a kind prescribed by the regulations.
An excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service.
(3A) Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies). If they do so, subsection (3) applies accordingly. …”.
Background & Submissions
The parties are not in dispute regarding the Respondent’s status as a small business employer. The Respondent reports 8 employees at the time of the Applicant’s dismissal.
I am satisfied that the Respondent is a small business within the meaning of section 23 of the Act.[1] As the Respondent is a small business, the requisite period of service Ms Prince must have served with the Respondent to be able to pursue this application is twelve months.
Ms Prince’s employment commenced with the Respondent on 23 October 2023 and her employment was terminated on 31 October 2024. Ms Prince was therefore employed for a total of 1 year and 9 days (including the day of her dismissal).
The primary issue to be determined is whether Ms Prince had any periods of unauthorised absence, unpaid leave, or unpaid authorised absence and, therefore, are to be excluded from the calculation of the minimum employment period.
It must be observed that, if any period (greater than 10 days) does not count as service pursuant to section 22 of the Act, the Applicant will not have completed the requisite 12-month period of service and therefore will be unable to pursue this unfair dismissal claim.
The Respondent asserts that Ms Prince has not completed the minimum period of employment to be eligible to make this unfair dismissal application.
The Respondent contends that, during her employment, the Applicant had no less than 33 days of unpaid leave.
The Respondent provided the Commission with a copy of Ms Prince’s payroll records covering the duration of her employment with the Respondent to confirm the periods of unpaid leave.
The Respondent also provided a document which summarises the incidences of absenteeism by the Applicant. This document outlines each day of absence or late arrival and whether such absence was advised of beforehand or covered by a certificate.
Ms Prince was afforded the opportunity to provide submissions, statements, and other evidence to dispute the jurisdictional objection raised by the Respondent. Directions were issued to the parties on 15 January 2025 that directed Ms Prince to file her submissions, statements, and other evidence by 4:00PM (AWST) on 23 January 2025.
On 28 January 2025, after being alerted to her noncompliance with the directions issued, Ms Prince sent an email to the Commission which, in part, reads:
“I am writing to address the matter of the disputed days off, which have been classified as unauthorised. I appreciate the opportunity to provide clarification regarding these absences and hope to resolve any misunderstandings.
Throughout my employment, I consistently communicated with management about my need for time off. In some instances, I offered to take unpaid leave as a way to manage unforeseen circumstances while minimising disruption. These arrangements were acknowledged and agreed to by management.”
Consideration
The Respondent’s submissions outline that Ms Prince had at least 33 days of unpaid leave during her employment with the Respondent. These absences may or may not have been authorised. Regardless, a period of unpaid leave does not count as a period of continuous service for the purposes of section 22 of the Act.
Ms Prince submits that her absences were always authorised and that she communicated with the Respondent when she was absent from the workplace. However, Ms Prince does not appear to dispute that there were periods of authorised unpaid leave during the tenure of her employment with the Respondent.
Ms Prince, despite being offered the opportunity to do so, has not provided any substantial submissions or evidence that could suggest the payroll records or information provided by the Respondent is incorrect or misleading.
On assessment of the material currently before the Commission, it is evident that Ms Prince had more than 10 days of unpaid leave during the tenure of her employment with the Respondent.
As a result, Ms Prince has not met the minimum employment period required to pursue this application for unfair dismissal remedy.
Conclusion
The Act provides that a person is protected from unfair dismissal if, at the time of the dismissal, the person has completed at least a minimum employment period.[2] In the case of employment with a small business, the minimum employment period is set at twelve months.[3] The 12-month period is a threshold requirement for making this application under section 394 of the Act and there is no discretion under the Act for this to be varied.
Having found that thirty-three days must be excluded from the Applicant’s period of service for the purpose of sections 22 and 384 of the Act, the Applicant’s period of service falls short of the 12-month minimum employment period required.
Accordingly, the application before the Commission must be dismissed. An Order to this effect has been issued concurrently.[4]
COMMISSIONER
[1] Fair Work Act 2009 (Cth), s 23.
[2] Fair Work Act 2009 (Cth), s 382(a).
[3] Fair Work Act 2009 (Cth), s 383(b).
[4] [PR784040].
Printed by authority of the Commonwealth Government Printer
<PR784039>
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