R&R counts towards the minimum employment period

A casual FIFO worker has been allowed to continue an unfair dismissal claim despite the employer arguing that half of his seven months with them was taken up with unpaid R&R.

The casual employee worked a 14 day on, 14 day off roster before his dismissal in September 2019.

The employer contended that the R&R could not be counted towards “continuous service” as defined by s22 of the Fair Work Act 2009 (the Act) which excludes "any period of unpaid leave or unpaid authorised absence".

Deputy President Beaumont noted a Full Bench decision which stated that R&R in the particulars of that case "was properly characterised as a block of authorised non-work time which formed an integral part of the work cycle”.  This interpretation was subsequently adopted by the Federal Circuit Court.

Concluding that reference to R&R in the agreement "is properly characterised as the block of authorised non-work time which forms an integral part of the work cycle", it followed that it did not constitute a period of either “unpaid leave” or an “unpaid authorised absence”, as those terms are referred to in s22(2)(b) of the Act".

While the agreement was "silent" on the employee’s specific working arrangement, his employment contract detailing his hours of work and roster was "unequivocal" and the periods of R&R were distinctly scheduled.

Deputy President Beaumont therefore found the employee worked on a regular and systematic basis for more than six months and so completed the minimum employment period and was protected from unfair dismissal.

Stuart Mclennan v MAS Australasia Pty Ltd [2020] FWC 151 (31 January 2020)

Disclaimer: This summary is a guide only and is not legal advice. For more information on employers’ obligations, call NECA Legal (WA) Pty Ltd on 6241 6129 or email necalegalwa@ecawa.org.au