University argues suspension failed to qualify him under minimum employment period
The Fair Work Commission (FWC) recently dealt with a casual academic’s unfair dismissal claim against the University of Western Australia.
The university argued that he did not meet the minimum employment period due to his suspension for misconduct allegations.
The employee was a casual academic for the university. He started in July 2019 and was dismissed 1 November 2022.
The employer said that he did not meet the minimum employment period, which required six months of continuous service.
The university argued the nature of his casual employment was “not of the kind” to constitute the required period of employment under the Fair Work Act.
It also said the employee “was suspended in October 2021 and November 2021, severing continuity of service.”
It further said that “regardless of suspension,” the employee’s service “was severed during breaks between semesters before being re-engaged,” adding that he knew that his contract had a clause that said the nature of his employment was “irregular.”
Approval process
According to records, the university had a school of molecular science. Unit coordinators would submit requests for the number of employees they anticipated they would need for their units to accommodate the forecasted or estimated student demand.
This was then submitted to a school operations team, who liaised with the head of school to obtain the head of school’s approval.
Once the required approval was received, the school operations team assisted the unit coordinator in undertaking the administrative tasks required to implement the proposed plan, such as organising employment contracts.
The school reportedly undertakes research and education in chemistry, chemical biology, biochemistry, molecular biology, among others.
The staff also facilitated and coordinated how the laboratories (labs) for the units would run on each occasion, and the employee was a “lab demonstrator.”
His role is to conduct experiments for students and/or assist them with their own experiments.
At the beginning of each semester, the school’s management would plan what weeks in the semester the labs would occur based on the unit requirements.
Usually, the school required approximately 30 demonstrators per semester for the units, but the number of casual employees varied depending on “budgetary considerations and the availability of permanent staff.” Those recruited in this role would be sent engagement emails informing the “nature and conditions of their casual employment.”
Disciplinary action
In October, the employee reported that HR ended his appointment in the university’s personnel and payroll system.
He discovered he was facing disciplinary action for violating the university’s code of conduct. He was suspended to make way for an internal probe.
Around November, during the investigation, he was notified about the continuation of his suspension.
The following year, in June, the university found that allegations against him were substantiated. It then terminated his employment via email for serious misconduct.
The employee filed for an unfair dismissal claim, saying that he met the required period for employment despite his suspension.
Commission’s decision
In its decision, the commission said the relevant consideration concerned the days and hours of work and whether there was a reasonable expectation of ongoing employment.
It found that there was only “one written contract between the parties – the teaching contract,” which stated that his employment was “on irregular hours for up to 12 months.”
“That contract cautioned the employee that the number of students enrolled in the unit may fluctuate, and it was therefore possible that the appointment may be subject to variation or cancellation any time during the semester,” the commission said.
It also pointed to the university’s suspension letter, which instructed the employee “not to attend work, while this matter is being investigated.”
“This direction is effective immediately and will remain in place for the duration of this matter. During this period, you will be excluded from the university’s workplace and facilities unless authorised by Human Resources,” the letter said.
Thus, the commission concluded that the employee’s suspension was “not a period of authorised absence to warrant continuity of service,” since there was “no reasonable expectation of continuing employment.”
It ruled the employee “had not completed a ‘period of employment’ of at least the ‘minimum employment period,” and so, dismissed his unfair dismissal claim.
