Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Meisha Robertson
v
Diaman Pty Ltd
(U2021/11404)

Application for an unfair dismissal remedy – jurisdiction – minimum employment period – whether unpaid absence to sit law exams was “excluded period” – s 22 Fair Work Act 2009 – absence authorised and unpaid – statutory criteria not satisfied – applicant not protected from unfair dismissal – application dismissed

[1] On 8 December 2021 Meisha Robertson (Ms Robertson or the applicant) applied to the Commission under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to her dismissal by Diaman Pty Ltd trading as Turner Freeman Lawyers (Turner Freeman, the employer, or the respondent).

[2] Ms Robertson claims to have been unfairly dismissed on 17 November 2021. She seeks compensation.

[3] Turner Freeman oppose the application and raise a jurisdictional issue. 1 It submits that Ms Robertson was not a person protected from unfair dismissal because she had not completed the minimum employment period (of six months) required by ss 382(a) and 383 of the FW Act. It says that Ms Robertson’s service included periods of unpaid authorised absence excluded by s 22 of the Act.

[4] Conciliation has not been conducted as the employer sought the jurisdictional issue be first determined.

[5] I issued directions on 6 January 2022.

[6] The jurisdictional matter was heard by video on 27 January 2022.

[7] Both parties were self-represented (the employer by an in-house legal practitioner).

[8] I heard evidence (by telephone) from the employer’s Human Resources and Office Services Manager, Anne Duggan. 2 Ms Robertson did not give evidence, though cross examined Ms Duggan and made written and oral submissions, as did the employer.

Facts

[9] The facts are largely not in dispute.

[10] Turner Freeman is a Sydney-based national legal practice with offices in New South Wales, Western Australia and South Australia.

[11] Ms Robertson was employed as a full time Receptionist/Legal Assistant under a written contract dated 2 May 2021. 3

[12] Ms Robertson commenced on 17 May 2021 in the Adelaide office.

[13] At the time of employment, Ms Robertson was undertaking second year tertiary studies for a law degree.

[14] Ms Robertson was dismissed on 17 November 2021, effective that day, for failure to comply with a direction that she be vaccinated against COVID-19. The dismissal, communicated orally, was confirmed in writing that same day. 4

[15] Having been employed from 17 May 2021 to 17 November 2021 (inclusive), Ms Robertson worked across a span of six months and one day.

[16] During this period, Ms Robertson was absent for twenty four days in total. These absences were variously attributable to days of annual leave (paid), days (or portions of days) of personal (sick) leave (paid), and days (or portions of days) of unpaid leave.

[17] Ms Robertson accrued annual leave and personal leave as per the FW Act’s National Employment Standards.

[18] The manner by which an employee in the firm took planned leave was to complete a Leave Application Form, have that form signed by their manager/supervisor, and then submit that form to human resources (Ms Duggan) who then recorded the approved and taken leave into a spread sheet. From that spread sheet employee pays were calculated. Details were recorded on pay slips of paid leave taken in a pay period and leave accruals.

Absence for law exams

[19] Ms Roberson was due to sit mid-year law exams in late May/early June 2021. On 24 May 2021 Ms Roberson emailed Ms Duggan as follows:

“Good Morning Anne,

Hope you are well. I have attached my leave form for exams starting this Thursday next week. Thanks again for allowing me to have this time off to sit exams, I really appreciate it.

Meisha Robertson

Receptionist”

[20] Ms Robertson attached to her email a Leave Application Form signed and dated by her on 24 May 2021, and approved by her supervisor. 5 The Leave Application form relevantly provided:

[21] Two days later, Ms Robertson submitted a further Leave Application Form (also signed by her and approved by her supervisor) as follows: 6

[22] The Leave Application Form for 27 May 2021, as tendered in these proceedings, includes a handwritten notation “this was sick leave”. Ms Robertson said this was handwritten by her supervisor.

[23] Ms Robertson was absent from work for the purposes of sitting law exams on six days: 27, 28 and 31 May and 1, 2 and 3 June 2021.

[24] Ms Robertson was not paid by the employer for five of these days (28 and 31 May and 1, 2 and 3 June 2021). Ms Robertson was paid as personal (sick) leave a portion of 27 May 2021 (0.23 of a day) with the remaining 0.77 of that day being unpaid.

[25] The portion of that day attributable to paid personal leave reflected Ms Robertson’s then level of personal leave accrual.

Absences for personal (sick) leave

[26] Ms Robertson also took single days of paid personal leave during her period of employment. These were 27 May, 23 June, 16 July, 12 August, 6 September, 7 September, 14 October and 1, 5, 9 and 10 November 2021.

[27] On each occasion Ms Robertson submitted a Leave Application Form which specified “sick/carers” leave as the form of leave sought. 7

[28] On each occasion Ms Robertson was paid up to the level of her then accrued personal leave. The remaining portion of each absence was unpaid. On only one of these days (7 September) was the full day paid due to a full day accrual existing.

Absences for annual leave

[29] Ms Robertson applied for two periods of paid annual leave during her period of employment. These were on 16 September to 22 September 2021 (five days) and 15 October 2021 (one day)

[30] On each occasion Ms Robertson submitted a Leave Application Form which specified annual leave as the form of leave sought.

[31] On each occasion Ms Robertson was paid annual leave as she had accrued the requisite amount.

Unpaid leave

[32] As noted, Ms Roberson sought and was granted unpaid leave for five days 28 and 31 May and 1, 2 and 3 June 2021 to sit law exams. The employer had no policy of providing study leave, paid or unpaid. Post-graduate study leave provided under the relevant award did not extend to undergraduate studies. 8

[33] Ms Robertson’s absence on the single day of 27 May 2021 to sit law exams was part paid by utilising her then level of accrued personal leave, and was otherwise unpaid leave.

[34] On 30 July 2021 Ms Robertson applied for and was granted a single day of leave without pay. 9

[35] On 1 November 2021 Ms Robertson applied for and was granted one hour leave without pay. 10

Consideration

Legal framework

[36] Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment of at least the minimum employment period.

[37] Section 383 sets out the minimum employment period:

“383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.”

[38] Section 384(1) provides:

“384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

[39] The FW Act’s dictionary (section 12) defines “service” by referring to “section 22” and “continuous service” as having “a meaning affected by section 22".

[40] In somewhat curious drafting, section 22 defines “service” but does not contain an express meaning of “continuous service” (though the phrase is bolded by the legislature in section 22(4)(b) without subsequent definition). Section 22 relevantly provides:

“22 Meanings of service and continuous service

General meaning

(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).

(2) The following periods do not count as service:

(a) any period of unauthorised absence;

(b) any period of unpaid leave or unpaid authorised absence, other than:

(i) a period of absence under Division 8 of Part 2-2 (which deals with community service leave); or

(ii) a period of stand down under Part 3-5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or

(iii) a period of leave or absence of a kind prescribed by the regulations;

(c) any other period of a kind prescribed by the regulations.

(3) An excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service.

(3A) Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies). If they do so, subsection (3) applies accordingly.”

Submissions

[41] In order to be protected from unfair dismissal, the minimum employment period required to have been worked by Ms Robertson prior to notice of dismissal was six months.

[42] Ms Robertson was given notice on 17 November 2021. At this date, Ms Robertson had served six months one day.

[43] Turner Freeman contend that 11.25 days of Ms Robertson’s total period of service are days that do not count for the purposes of calculating the minimum employment period because they are “excluded periods” within the meaning of s 22 of the FW Act.

[44] The 11.25 days referred to by the employer is the combined total of days (including portions of days) when Ms Robertson was granted unpaid leave. This includes the five full days (28 May 2021 to 3 June 2021) when Ms Robertson was absent to sit law exams, and other days when Ms Robertson was absent (usually due to sickness) but where her then level of sick leave accrual did not cover the full day of personal leave applied for. In those circumstances, the employer paid Ms Robertson to the then level of her personal leave accrual, and characterised the remainder of those days as unpaid leave.

[45] Turner Freeman submit that the days of Ms Robertson’s unpaid absence to sit law exams and the days (or portion of days) of absence when personal leave accruals had been exhausted are “unpaid authorised absences” within the meaning of s 22(2)(b) and thus excluded periods that “do not count as service” under s 22(1).

[46] In contrast, Ms Robertson contends that neither category are excluded periods because:

● with respect to her absences to sit law exams, the exams were for a purpose that had actual or potential benefit to the employer and that Ms Robertson was employed at least in part because she was a law student; and

● with respect to her absences whilst sick but where her personal leave accrual had been exhausted, the employer unilaterally characterised the whole or part of those days as unpaid leave and did not seek Ms Robertson’s consent to do so in circumstances where it would have been reasonable for the employer to provide Ms Robertson the option of taking paid annual leave instead.

Were these absences excluded periods?

[47] For the following reasons I conclude that each of the five days of absence by Ms Robertson on 28 and 31 May and 1, 2 and 3 June 2021 to sit law exams were “unpaid authorised absences” within the meaning of s 22(2)(b) and thus excluded periods.

[48] Firstly, they were unpaid.

[49] Secondly, they were absences from work.

[50] Thirdly, they were absences from work authorised by the employer in the sense that these were five days Ms Robertson would have otherwise been required to work but for the fact that the employer approved her absence. In Affinity Education Group Limited v Kogler a full bench of the Commission observed:

“We consider that the expressions “unpaid leave” and “unpaid authorised absence” in s.22(2)(b) connote periods of time off work which, but for the permission or authorisation of the employer, would have been expected if not required to have been worked by the employee.

[51] Considering the phrase “unpaid authorised absence” as a whole and in statutory context, Ms Robertson’s absence during this five day period to sit law exams is properly characterised as an “unpaid authorised absence”.

[52] Further, this absence is not otherwise to be counted as was not community service leave, nor a stand down nor absence of a kind prescribed by regulation (s 22(2)(b)(i)(ii) and (iii)).

[53] Moreover, this period was not unilaterally designated by the employer as unpaid leave. It was leave applied for by Ms Robertson. In applying for this leave Ms Robertson specifically expressed her request from the menu of leave options as “leave without pay”. Ms Robertson’s covering email of 24 May 2021 thanked Ms Duggan for “allowing me to have this time off to sit exams”. This is not the language of unilateralism by the employer.

[54] I reject Ms Robertson’s submission that these days should not be excluded because the exams she sat were for a purpose that had actual or potential benefit to the employer. There is nothing in the language of s 22 which qualifies or reads down the phrase “unpaid authorised absence” by reference to the purpose of the absence let alone to whom benefit accrues. If such narrowing of the ordinary meaning of this phrase is to occur, this would require specific legislative expression. Whether a benefit to Turner Freeman from Ms Robertson sitting law exams existed or was non-existent, or whether a benefit (if any) was actual or potential matters not to whether Ms Robertson’s absence was an “unpaid authorised absence”.

[55] I note that whilst it is entirely plausible that it was made known to the employer at the time of engagement that Ms Robertson was an undergraduate law student and that this was relevant to the employer’s decision to offer employment, Ms Robertson does not assert that it was a condition of her employment that she sit or successfully complete an undergraduate degree or that she sat exams on those five days in satisfaction of contractual obligations as an employee.

[56] I find that each of the five days 28 and 31 May and 1, 2 and 3 June 2021 were days of an unpaid authorised absence. That being so, each of these five days is an excluded period within the meaning of s 22 of the FW Act and, in the words of s 22(1), does not count as service. Consequently, these five days are required to be deducted from Ms Robertson’s period of service. A deduction of five days from the period of six months one day means that Ms Robertson served less than the six month minimum required to be eligible to make an unfair dismissal application.

[57] It is therefore unnecessary to determine whether other absences (such as the personal leave absences characterised by the employer as days or portions of days of unpaid leave because personal leave had been exhausted) were also unpaid authorised absences and to be excluded from the count.

[58] Were I required to determine that question, I consider there to be force in the proposition that these too were periods of unpaid authorised absence. The personal leave was applied for in circumstances where Ms Robertson’s personal leave accrual was inadequate to cover the full period of leave she sought. The excess portions were unpaid absences permitted by the employer but not required by a legislative or contractual obligation. That an alternate form of paid leave such as annual leave could have been applied for would not have altered my conclusion given that Ms Robertson did not apply for annual leave and given that an employer cannot under the FW Act unilaterally designate any absence from work as annual leave. I agree that good human resource practice would make consultation with employees in such circumstances reasonable, but it is not apparent that the phrase “unpaid authorised absence’ in s 22 is conditioned by a notion of reasonableness as distinct from lawfulness.

Conclusion

[59] As at least five days of Ms Robertson’s service are required by s 22 of the FW Act to not count for the purposes of determining her period of employment within the meaning of s 384, Ms Robertson served less than the six month minimum required by ss 382 and 383 to be protected from unfair dismissal.

[60] The jurisdictional challenge by the employer is upheld.

[61] Ms Robertson was not protected from unfair dismissal. She was not eligible to make an unfair dismissal claim against Turner Freeman. The application must be dismissed. An order 11 giving effect to this decision is issued in conjunction with its publication.

DEPUTY PRESIDENT

Appearances:

M Robertson, on her own behalf.

S Howe, for and on behalf of Diaman Pty Ltd

Hearing details:

2022

Adelaide (by video)

27 January

Printed by authority of the Commonwealth Government Printer

<PR737870>

 1   Employer Response (F3) 22 December 2021

 2   R1 Statement of Anne Duggan 14 January 2022

 3   AD-1

 4   AD-2

 5   AD-3 page 1

 6   AD-3 page 2

 7   AD-3 pages 3,4,6,8,9,12 and 13

 8   Clause 28 Legal Services Award 2020

 9   AD-3 page 5

 10   AD-3 page 11

 11   PR737871