Worker who went to jail argues he was ‘still employed’ during incarceration

Case explores consequences of employer 'holding a position open' for a worker

Worker who went to jail argues he was ‘still employed’ during incarceration

The “minimum employment period” is the least length of time an employee must be employed before they can terminate a contract.

According to caselaw, this period is important for protecting the rights of both employers and employees since it allows the parties to hold each other accountable for their actions.

Specifically, this period protects employees from being fired without cause.

In this decision from the Fair Work Commission, a worker argued that he was still employed while serving time in jail. This is mainly because he held onto the employer’s alleged promise of “holding his position open” while incarcerated.

Background of the case

The employer is a small business with a minimum employment period of 12 months. The worker was originally employed on 1 June 2021. According to records, he was incarcerated for a matter unrelated to his employment and did not attend work from July 2022.

The worker said that he could not contact the employer before being incarcerated for six weeks as “he was incarcerated on the spot.” He said that he “assumed that his partner at the time informed” the director that he was going to jail.

Meanwhile, the employer’s director was unaware that the worker would be taking an extended leave period. It then paid out the worker’s entitlements and remaining hours worked.

After a month, the worker contacted the employer’s director on 30 August 2022. The worker said that the latter told him it would “hold the position open” for the worker so that he could have employment “in effectively the same role after he was released from correctional services.”

However, the employer’s lawyer argued that this was “a new version of employment” and “not continuous service” since the worker was said to have “abandoned his role without informing the employer.”

The lawyer also admitted that the employer “would have kept” the worker if he had informed the director of the situation before abandoning his role. However, without any contact from the worker, the employer was “left in the position of having to end the worker’s first span of employment to try and fill the role with another employee.”

When the worker was rehired in the same role, he was only employed with the employer from 1 September 2022 to 25 November 2022, a service period of less than three months.

Was there ‘continuous service’ when the worker was in jail?

The Fair Work Commission (FWC) said there was no continuous service, adding that the worker was dismissed after abandoning his employment.

“The employer was not properly informed of the possibility that the worker was going to be placed into custody,” the FWC said, saying that there is no merit in the argument that he was “incarcerated on the spot.”

“The worker had legal representation at the time and had the ability to send correspondence to the employer. As the latter paid out his entitlements and the remaining hours worked, this is evidence that he was dismissed in July 2022,” it said.

“Had the worker informed the employer of his inability to work due to his incarceration, then the employer would have had the opportunity to note his absence down and enable the employer to allow for a break in service and then to resume his employment once the absence was over,” it added.

Thus, the FWC ruled that the worker did not complete the minimum employment period.


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