Time off work on workers’ compensation leave is included when calculating whether a worker has served out the minimum amount of time needed to claim unfair dismissal, Fair Work Australia has ruled. Labour hire firm WorkPac Pty Ltd claimed dump truck driver Michael Bambach could not claim unfair dismissal as he had only served in the role for 2½ months. Under ss 382-384 of the FW Act, a person is protected from unfair dismissal if they have served continuously for a company for more than six months (or one year in a small business). However for casuals, a period of service does not count towards the period of employment unless the work is regular and systematic; and the worker had a reasonable expectation of continuing regular/systematic employment. FWA heard WorkPac employed Bambach on a casual basis from April 16, 2007. He finished up one job in December 2009 and started another as a dump truck operator in a NSW mine in March 2010. In late May 2010, Bambach suffered a work-related injury and was put on workers’ compensation leave for 16 months. In September 2011 he was declared fit for work but WorkPac sacked him after determining he was no longer suitable for the work. Bambach claimed he had been unfairly dismissed but WorkPac raised several jurisdictional issues, including he had only worked for the company for 2½ months.
WC claim accepted so absence ‘authorised’
Commissioner Alastair MacDonald said Bambach needed to prove the period of employment was a “period of continuous service”. He noted the only excluded periods under s 22(2) of the Act were periods of unauthorised absence; periods of unpaid authorised absence; or any other period of a kind prescribed by the regulations. Bambach’s workers’ comp absence was authorised, the cmr said, as his claim had been accepted with payments. Thus that period on leave counted towards his service so it overcame the six month minimum employment bar to claiming unfair dismissal. Cmr MacDonald rejected a WorkPac claim Bambach could not claim unfair dismissal as he was not guaranteed future work with the company. “The evidence of the rotating seven day roster is evidence, in my view, of a casual employee engaged on a regular and systematic basis with the reasonable expectation of continuing employment: s384(2)(a),” he said. Cmr MacDonald ruled Bambach’s period of employment stretched from March 7, 2010 until Sept 24, 2011. He rejected the jurisdictional issues raised by WorkPac and ruled Bambach was protected from unfair dismissal. The matter will proceed to a further directions hearing. (Bambach v WorkPac Pty Ltd , FWA670, 9/3/12)
Source: Thomson Reuters Workforce news, 16 March 2012.
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