Was vaccine-related absence a break in employment?
The Fair Work Commission (FWC) recently dealt with a case involving a worker dismissed from employment because of his cavalier attitude about his attendance.
While the employer did not dispute that the worker’s final payslip had the word “terminated” written on it, it contended that the worker was ineligible for an unfair dismissal case as he did not meet the required minimum employment period.
Was there a break in employment?
According to the worker’s submission, he commenced employment with the furniture company on 18 July 2021 as a full-time upholsterer and furniture maker.
The worker’s dismissal arose from an incident on Wednesday, 15 February 2023. That day, the worker alleged that the temperature in the factories was nearing 46 °C.
He said he felt unwell that day, did not have water, and had a sore knee. Thus, he said he informed the office at 3 pm that he could not continue working and left.
When the worker returned to work on 20 February, he was told, “You are finished, you were actually sacked on Thursday, I am letting you go today.” Hence, his dismissal on that day.
In relation to his employment period, the worker argued that his employment was continuous from 18 July 2021 and disputed that his employment ceased on 15 October 2021.
“He submits that he completed a period of 17.5 months of employment as a full-time upholsterer and furniture maker and therefore completed the minimum employment period,” the FWC noted.
Meanwhile, the employer contended that the worker’s first employment in the company was from 27 July 2021 to 15 October 2021, when he told his employer that he had no intention of having his COVID-19 vaccine, collected his tools, and left the workplace without notice.
It further noted that the worker was then re-employed on 22 March 2022 under a new contract after the worker was found to have been vaccinated and because of a shortage of skilled labor in the business.
The employer noted that the worker’s decision to leave during his first employment in 2021 was a resignation.
Moreover, while the employer admitted that it did not provide written employment contracts to workers because it is a small business, it argued that the company’s payroll records for FY 2021-22 showed two periods of the worker’s employment as there was a break of more than five months.
Hence, the employer opposed the unfair dismissal application as the worker had not met the minimum employment period of 12 months.
Meanwhile, regarding the worker’s dismissal, the employer contested that the employment termination was effective on 16 February 2023 after his early departure from work that day and the unauthorized absence the following day.
The employer also said that the worker showed a lack of concern about his attendance and often took time off work without notice.
Ultimately, the Commission decided to junk the unfair dismissal case as it found that there was indeed a break in the worker’s employment.
In deciding the case, the FWC found that the worker’s first employment ended on 15 October 2021. Hence the period of less than 13 weeks of work was separate and unrelated to the current case.
When the worker had met the vaccination obligations, there was a new and separate contract of employment on 22 March 2022 until 20 February 20, 2023.
“The 46 weeks was reduced to just over 39 weeks of continuous employment taking into account the unpaid/unauthorised absence over the period of employment,” the FWC noted.
“The continuous period of just over 39 weeks falls short of the 12 months of minimum employment period required under s.383 of the Act,” it added.