Days-short employment duration prevents access to unfair dismissal remedies
The Fair Work Commission (FWC) recently dismissed an unfair dismissal application involving a worker who fell just short of the minimum employment period required for protection, losing her right to challenge termination by a matter of days.
The case arose when the worker was made redundant after five months and twenty-eight days of employment, falling between two and three days short of the six-month threshold needed to access unfair dismissal remedies.
The worker argued she had been unfairly dismissed from her employment and sought compensation for the termination.
She maintained that her employment duration should have provided protection under unfair dismissal legislation, allowing her to challenge the circumstances and process surrounding her redundancy.
Brief employment period creates protection gap
The employment relationship commenced on 11 November 2024 when the worker began her role with the integrated metal management company.
The position continued for approximately six months until termination procedures began in early May 2025, creating a situation where the worker narrowly missed achieving the statutory protection threshold.
On 8 May 2025, the worker was notified by text message that her role was being made redundant, followed by a formal termination letter the next day confirming the redundancy was effective immediately.
This timing became crucial in determining whether sufficient employment duration existed to trigger unfair dismissal protection rights.
The employer did not claim small business status, meaning the standard six-month minimum employment period applied rather than the extended twelve-month requirement for small business employers.
This created a precise timeframe test where days rather than weeks or months determined the worker's eligibility for legal protection.
Timing calculations determine protection eligibility
Section 383 of the Fair Work Act specifies that the minimum employment period ends at the earlier of either notice being given of dismissal or immediately before the dismissal itself.
This provision required careful analysis of when the worker's employment period should be measured against the six-month requirement.
The Commission examined whether the initial text message constituted formal notice of dismissal, noting: "The text message may be notice of the dismissal under s 383(a)(i). However, no date of termination was provided in that text."
This ambiguity meant the tribunal needed to consider alternative timing calculations for determining protection eligibility.
Even using the more favourable calculation based on the formal termination letter received on 9 May 2025, the worker's employment duration remained insufficient. The FWC found:
"The date of the text message and the date of the termination letter are both short of six months from the date of employment by either 3 or 2 days respectively."
Legislative framework showcases bright-line test
The Commission applied section 382 of the Fair Work Act, which provides that a person is protected from unfair dismissal only if they are "an employee who has completed a period of employment with his or her employer of at least the minimum employment period."
This creates an absolute threshold that cannot be waived or adjusted based on circumstances.
Section 384 defines "period of employment" as "the period of continuous service the employee has completed with the employer at that time as an employee," reinforcing that the calculation focuses purely on temporal duration rather than work quality, contribution, or other factors that might otherwise support protection arguments.
The legislative framework provides no discretionary relief for workers who fall marginally short of protection thresholds, creating situations where days or even hours can determine access to fundamental workplace rights.
The Commission noted the employer employed 62 workers, confirming this was not a small business case where extended timeframes might apply.
Redundancy circumstances become irrelevant
Despite the worker's redundancy potentially raising legitimate concerns about process, consultation, or genuine operational requirements, the Commission could not examine these substantive issues due to the jurisdictional limitation.
The FWC's role was confined to determining whether minimum employment period requirements were satisfied before any dismissal merits could be considered.
The Commission's conclusion was definitive: "I therefore find [the worker] was employed for, at most, five months and twenty-eight days... It follows [the worker] was not employed for the relevant minimum employment period as prescribed by s 383(a)." This mathematical calculation determined the entire outcome regardless of other considerations.
Bright-line rule creates protection gaps
The decision highlights how minimum employment period requirements create absolute barriers to workplace protection, regardless of individual circumstances or potential merit in dismissal challenges.
The Commission found: "[The worker] is not a person protected from unfair dismissal. This application is therefore dismissed."
This outcome demonstrates the inflexible nature of employment protection thresholds, where workers can lose fundamental rights through minimal timing differences beyond their control.
The case particularly illustrates challenges facing workers in temporary or project-based roles where employment duration may be uncertain or subject to external factors.
