31 December 2019
Calculating an employee’s period of employment is important if you are responding to an employee's application for an unfair dismissal remedy.
As you will see below, the definition is not so so straight forward so here's a guide.
In a hurry? Jump ahead.
First, we'll start with the period of employment definition in the Fair Work Act.
Section 384 Fair Work Act - period of employment
Below I have underlined the important parts of the definition which we'll break down after.
FAIR WORK ACT 2009 - SECT 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.
(2) However:
(a) a period of service as a casual employee does not count towards the employee's period of employment unless:
(i) the employment as a casual employee was on a regular and systematic basis; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and
(b) if:
(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and
(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and
(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;
the period of service with the old employer does not count towards the employee's period of employment with the new employer.
Below is a break down the definition so you'll know how Fair Work calculates an employee minimum work period.
Continuous service
Continuous service is a period of unbroken service that an employee is employed, not counting exclusions for certain types of unpaid leave and certain types of unpaid authorised absence.
Regular and systematic
What is employment on a regular and systematic basis?
It has to do with the employment and not the employee's hours worked.
So, what helps to prove regular and systematic employment?
A clear pattern or roster of hours is strong evidence.
Also, the term ‘regular’ implies a repetitive pattern and does not mean frequent, often, uniform or constant.
The term ‘systematic’ requires that the engagement be ‘something that could fairly be called a system, method or plan’.
Where there is no clear pattern or roster, evidence of regular and systematic employment can be established where:
- the employer offered suitable work when available at times that the employee could work, and
- work was offered and accepted regularly, not occasionally or irregularly.
Reasonable expectation of continuing employment
What is a reasonable expectation of continuing employment?
The Fair Work Act does not define this term, it depends on certain circumstances.
One test that has been applied is if during a period of at least six months before a dismissal, the employee had a reasonable expectation of continuing employment on a regular and systematic basis.
Transfer of employment
An employee's service with one employer (first or old employer) will count as service with another employer (second or new employer) if two conditions are met:
- the second employer is an associated entity of the first employer, and
- an employee becomes employed by the second employer within 3 months of their employment being terminated by the first employer.
If these 2 conditions are not met, then the period of service with the first employer will not be counted towards service with the second employer.
Excluded period
Below are examples of when continuous service will be excluded:
- resignation
- dismissal
- transfers of employment that don’t meet the transfer of employment definition in section 22(7) of the Fair Work Act.
An excluded period does not break an employee’s continuous service with their employer.
But, it does not count towards the length of the employee’s continuous service.
Periods of casual employment may affect the length of an employee’s continuous service for an application for an unfair dismissal remedy.
The following are periods that are excluded from the definition of ‘service’ and therefore for calculating the minimum employment period:
• any period of unauthorised absence, and
• certain periods of unpaid leave or unpaid authorised absence (community service leave, certain stand downs and prescribed leave or absences are exceptions).
Unauthorised absence
The following are examples of unauthorised absence:
• periods of industrial action engaged in by employees, and
• other absence from work contrary to employer directions.
Unpaid authorised absence
The following are examples of unpaid authorised absence:
• unpaid parental leave, and
• unpaid personal/carer’s leave.
The above periods do not break service however they are not counted in the calculation of the minimum period of employment.
Unpaid personal leave not counted
Wales v 3 Point Motors Pty Ltd T/A 3 Point Motors [2012] FWA 3817 (Jones C, 22 May 2012).
An employee worked for exactly 6 months and had part of 1 days' sick leave without pay. With that period of leave deducted the employee had not met the minimum period of employment.
Injury covered by private insurer is unpaid leave not counted
L.M. v Standard & Poor’s (Australia) Pty Ltd [2012] FWA 9634 (Roe C, 12 November 2012).
The employee's absence for 5 weeks due to illness was paid for by the employee's income protection insurance. Because the employer was not legally obligated to provide income protection insurance, the employee was on unpaid leave.
Absences that count towards the minimum employment period
What is included in the minimum period of employment?
The following are examples of unpaid authorised absence that are counted as service towards the minimum period of employment:
• community service leave (e.g. jury service), and
• certain stand downs.
Injury covered by private insurer is unpaid leave & not counted
Workpac Pty Ltd v Bambach [2012] FWAFB 3206 (Ross J, Sams DP, Booth C, 31 May 2012).
An employee's absence while on workers compensation (paid by an insurer on behalf of the employee) was not an unpaid authorised absence and not an excluded period.
Bringing it all together
Check the definition for a period of employment,
As always, be sure to get advice if you are in doubt.
Do you have questions or comments about an employee's period of employment? Be sure to leave them below.
FAQs
Which is the best definition of employment at will group of answer choices? ›
At-will means that an employer can terminate an employee at any time for any reason, except an illegal one, or for no reason without incurring legal liability.
What is the legal definition of labor? ›1. Work; toil; service. Continued exertion, of the more onerous and inferior kind, usually and chiefly consisting in the protracted expenditure of muscular force, adapted to the accomplishment of specific useful ends.
Why was the Age Discrimination in Employment Act of 1967 created? ›(b) It is therefore the purpose of this chapter to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; to help employers and workers find ways of meeting problems arising from the impact of age on employment.
What is Title 7 of the Civil Rights Act of 1964? ›Title VII prohibits employment discrimination based on race, color, religion, sex and national origin.
Which is the best definition of employment at will quizlet? ›Employment-at-will means an employer or employee can end an employment relationship at any time for any reason.
What is the meaning of employment answer? ›Employment most generally means the state of having a paid job—of being employed. To employ someone is to pay them to work. An employer provides employment to employees.
What are the 3 main labour laws? ›South Africa has three main labour laws, namely the Basic Conditions of Employment Act, the Labour Relations Act, and the Employment Equity Act.
What are the four 4 test to determine the existence of employer employee relationship? ›To ascertain the existence of an employer-employee relationship, jurisprudence has invariably adhered to the four-fold test, to wit: (1) the selection and engagement of the employee; (2) the payment of wages; (3) the power of dismissal; and (4) the power to control the employee's conduct, or the so-called "control test ...
What are the employment laws in us? ›The primary federal employment laws are: Title VII (of the Civil Rights Act); the Americans with Disabilities Act; the Age Discrimination in Employment Act; the Equal Pay Act; the Fair Labor Standards Act; the Family and Medical Leave Act; the Immigration Reform and Control Act; the National Labor Relations Act; the ...
Who is protected under the Age Discrimination in Employment Act of 1967? ›The Age Discrimination in Employment Act of 1967 (ADEA) protects certain applicants and employees 40 years of age and older from discrimination on the basis of age in hiring, promotion, discharge, compensation, or terms, conditions or privileges of employment.
Can an employer refuse your retirement? ›
A company can refuse to give you your 401(k) if it goes against their summary plan description. If the plan states early distributions and 401(k) loans are prohibited there may be little you can do to overturn their decision.
What are the 2 types of age discrimination? ›Two of the most common types of age discrimination are direct age discrimination and indirect age discrimination.
What are the 3 types of discrimination? ›Race, Color, and Sex
For example, this Act prohibits discrimination against an Asian individual because of physical characteristics such as facial features or height.
What is title 42? Title 42 of the United States Code is the code that addresses public health, social welfare, and civil rights. Title 42 was a previously rarely-used clause of the 1944 Public Health Services Law until the Trump Administration began using it 2020 to prevent migrants from entering the United States.
What does Title VI of the Civil Rights Act of 1964 say? ›No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
Which of the following is also known as described employment? ›Detailed Solution
Underemployment is also regarded as Disguised unemployment. It results when a person contributes to less production than what he/she is capable.
Pierson, Full Employment (1941). Beveridge defined full employment as follows: “It means having always more vacant jobs than unemployed [workers].
Which one of the following best describes an employment? ›The answer is (2) Employed part-time.
What is the official definition of employed? ›The ABS defines people as 'employed' if they work one hour or more in the reference week. The vast majority of part-time employed people work more than 15 hours. The 'one hour rule' is used internationally and allows employment figures to be compared with other countries.
How will you explain the term employee and employment? ›In the terms of economics, employment means the state of having a job or being employed. If one has to employ someone, they have to pay them. The one who employs is called the employer, and the one who is getting paid for providing services is the employee. Employers can be an organization or an individual, etc.
What are the 4 types of employment? ›
Ans: Full-time, part-time, casual, contract, Apprenticeship, Traineeship, Employment on commission and probation are the eight types of employment.
What are the 3 basic rights of every employee in the workplace? ›The right to know about health and safety matters. The right to participate in decisions that could affect their health and safety. The right to refuse work that could affect their health and safety and that of others.
What are 5 rights of an employee? ›To be paid the agreed wage on the agreed date and at the agreed time. To be provided with appropriate resources and equipment to enable him/her to do the job. To have safe working conditions. To fair labour practices.
What are the 5 fair reasons for dismissal? ›...
A run-down of the most common reasons to dismiss an employee.
- Failure to do the job. ...
- Misconduct. ...
- Long term sick. ...
- Redundancy.
A worker can be classified as an employee if the following characters are present: Works exclusively for the payer. Payer provides tools. Payer controls duties, whether that control is used or not.
What are the four legal requirements of employees in the workplace? ›- To take reasonable care of themselves.
- To take reasonable care of others.
- To cooperate with employers.
- Not to misuse or mistreat work equipment.
- Integrity Tests. Integrity tests are the foundation of pre-employment testing. ...
- Skills Tests. Pre employment skills testing doesn't focus on a candidate's knowledge or personality. ...
- Personality Tests. ...
- Other Pre-Employment Tests To Take.
Employment law is extremely dynamic, jurisdiction specific and subject to frequent legislative and case law developments as employers are often at the forefront of social change. It constitutes contract law and statutory rights, with a great many of these rights deriving from European Community law.
What is employment law and examples? ›Besides health and safety, wages and benefits and discrimination, employment law also often focuses on labor relations, unemployment compensation, family and medical leave, employee contracts, immigration and even the hiring process.
Which are the employment rights? ›At the workplace, all employees have basic rights such as the right to eat, the right to be safe, the right to be paid for the work they do, the right to join trade unions, and the right to gather – including the right to privacy, fair compensation, and freedom from discrimination, and the right to seek access to ...
What are the four types of age discrimination? ›
See the section, When different treatment because of age may be allowed, further into this guide. There are four main types of discrimination under the Equality Act: • Direct discrimination • Indirect discrimination • Harassment • Victimisation.
What qualifies as age discrimination? ›Under the ADEA it is unlawful to discriminate against any individual age 40 or older because of their age with respect to any term, condition, or privilege of employment, including but not limited to, recruitment, hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.
What is the Age Discrimination in Employment Act? ›(b) It shall be unlawful for a labor contractor or subcontractor, if any, to refuse to refer for employment or otherwise discriminate against any individual because of such person's age. (3) Cause or attempt to cause an employer to discriminate against an individual in violation of this Act.
Can you lose your 401k if you get fired? ›There are two types of 401(k) contributions: Employers' and employees' contributions. You acquire full ownership of your employer's contributions to your 401(k) after a certain period. This is called Vesting. If you are fired, you lose your right to any remaining unvested funds (employer contributions) in your 401(k).
Do I lose my pension if I get fired? ›The short answer is no. Unfortunately, the misconception that you can lose your federal retirement if fired persists even among federal employees. Many employees incorrectly believe that they will lose their federal retirement benefits if the agency fires them.
What age is retirement mandatory in the US? ›The Age Discrimination in Employment Act (ADEA) was amended in 1978 to prohibit mandatory retirement before age 70 in most occupations.
What are the two ways to prove discrimination? ›There are two types of evidence that can be used to prove discrimination: direct and circumstantial.
What are the types of unfair discrimination? ›Unfair discrimination: is dealt with under the Employment Equity Act. Examples of this are – race, gender, ethnic or social origin, colour, sexual orientation, age and disability, etc. Discrimination can be direct or indirect. These disputes go to the Labour Court and the Employment Equity Act applies.
What are the 5 main types of discrimination under the Act? ›- Direct discrimination.
- Discrimination arising from disability.
- Indirect discrimination.
- Harassment.
- Victimisation.
- Duty to make reasonable adjustments.
Here are just a few examples of unfair treatment at work:
Creating offensive comments, emails or social media posts about an employee. Demoting, transferring, or dismissing an employee without a fair, disciplinary process. Paying women lower wages for doing the same job, because of their sex.
What are the 9 grounds of discrimination? ›
The Equal Status Acts 2000-2018 ('the Acts') prohibit discrimination in the provision of goods and services, accommodation and education. They cover the nine grounds of gender, marital status, family status, age, disability, sexual orientation, race, religion, and membership of the Traveller community.
What are the 13 protected grounds of discrimination? ›3 (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability and conviction for an offence for which a pardon has been ...
Is Title 42 still in force? ›"Title 42 is still in effect.
What does Title 42 Section 264 of the US Code allow who is allowed to do what? ›Under section 361 of the Public Health Service Act (42 U.S. Code § 264), the U.S. Secretary of Health and Human Services is authorized to take measures to prevent the entry and spread of communicable diseases from foreign countries into the United States and between states.
What is Section 265 of Title 42? ›265 - Suspension of entries and imports from designated places to prevent spread of communicable diseases.
Which is true regarding employment at-will quizlet? ›What is true of at-will employment? The company is free to terminate the employment relationship without just cause.
What is the employment at-will strategy? ›The answer to “What is at-will employment?” is that it is a type of employment that has become increasingly popular in US because it enables businesses to make employees redundant without notice for any legal reason. Additionally, it gives companies the flexibility to change the terms of employment without notice.
What does the term employment at-will mean in a personnel policy handbook quizlet? ›Definition. 1 / 42. Most states adhere to the employment-at-will doctrine, which means that in the absence of a legal employment contract, employees and employers can end their relationship for any reason.
How will you define unemployment? ›People who are jobless, looking for a job, and available for work are unemployed. The labor force is made up of the employed and the unemployed. People who are neither employed nor unemployed are not in the labor force.