Teacher says her employment automatically ended after an absence for three months without leave
A teacher made an unfair dismissal application alleging she was unfairly dismissed by her employer. The school said the employment ceased by operation of law and that the worker had not been dismissed within the meaning of the relevant Act.
The employer relied on legislation providing that an ongoing employee who is absent from duty for a period of three months, other than on leave granted under the Act, ceases to be an employee in the teaching service.
The worker had been absent from duty without leave, meaning she had been absent from duty for a period of three months, triggering automatic termination under the statute.
Worker's leave status and stop pay application
The worker's employment was covered by the Education and Training Reform Act 2006 (ETR Act), with its Section 2.4.34 stating that: "An on-going employee who is absent from duty for a period of 3 months...otherwise than on leave granted on this or any other Act ceases to be an employee in the teaching service."
The ETR Act draws a distinction between an employee who has been dismissed, or whose employment has been terminated, by the Secretary (that is, on the employer’s initiative) and an employee whose employment has otherwise ceased
The worker was on approved leave without pay for several years before becoming absent from duty without leave. On this basis, a "stop pay" was applied to the worker's employment profile in the employer's payroll system.
The worker sent an email raising questions, including why she had been placed on ongoing unpaid leave. The principal of the secondary college wrote to the worker regarding the fact that she had been absent without leave.
Although that letter referred to the legislation, it erroneously stated that the worker's employment would cease at her own initiative within days of issuing the letter. Shortly after, the acting principal wrote to the worker to inform her that her employment had ceased by operation of the legislation.
However, that letter erroneously stated the employment ceased with effect from a recent date rather than years earlier when the three-month absence period expired.
Employment ceased automatically years earlier
The Commissioner found the worker had been absent from duty without leave for several years. It followed that the worker had been absent from duty for a period of three months, otherwise than on leave granted under the legislation.
The effect of this finding was that the worker's employment ceased by operation of the legislation years earlier.
The legislation operated so as to automatically end the employment relationship without any intervention or action by the employer, and the worker ceased to be an employee in the teaching service from that time.
This was the case despite any misapprehension as to the status of the worker's employment between the parties, or as communicated to the worker in recent correspondence.
The recent letter advising that the worker's employment had ceased was of no legal effect.
As the worker was not dismissed by the employer, the worker was unable to make an unfair dismissal application. The application was dismissed.
