He was one day over the minimum - until his leave records told a different story
One day made all the difference for a worker who tried to challenge his dismissal.
The worker started at Volgren Australia Pty. Limited on July 28, 2025, and was let go exactly six months and one day later, on January 28, 2026. By the calendar, he had just cleared the minimum service threshold needed to bring an unfair dismissal claim under the Fair Work Act 2009.
Or so it seemed.
He filed with the Fair Work Commission on February 18, 2026, alleging the dismissal was harsh, unjust or unreasonable.
Volgren raised a jurisdictional objection. The company argued the worker had not actually completed six months of service as the Act defines it - and that distinction turned out to matter.
Under the Fair Work Act, employees need at least six months of continuous service before they can access unfair dismissal protections - or 12 months if the employer is a small business. Volgren is not a small business. But the Act does not simply count calendar days. Periods of unpaid leave that fall outside specific statutory exceptions - such as community service leave or periods of stand down - do not count toward the service total.
The Commission directed Volgren to produce records of the worker's leave during his employment, including whether it was paid or unpaid. The employer's evidence showed approximately 64.61 hours - roughly eight and a half days - of unpaid leave.
The worker was given until July 29, 2026, to file submissions or evidence disputing the leave figures.
He did not respond.
The Commission accepted Volgren's evidence. With those eight and a half days stripped from a margin of just one day, the worker fell short of six months' continuous service. The Commission dismissed the application on September 16, 2026, and issued an order to that effect.
For HR teams managing probationary or early-tenure employees, the case shows that accurate leave records - particularly the paid and unpaid distinction - can determine whether a dismissed employee qualifies to bring an unfair dismissal claim at all.
The decision addressed only whether the worker had met the minimum employment period. It did not consider the merits of the unfair dismissal claim itself.
