16 August Counting down the days: Employee absence during a probation period August 16, 2017 By Reef Admin Fair Work Act, Leave provisions 0 How does an employee's absence during their probation period affect their ability to bring an unfair dismissal claim? Does it extend their probation period or Minimum Period of Employment? It's now standard practice to include a probation period in a employee’s contract of employment. This allows a business time to assess the employee’s suitability for the role and whether they fit with the business. But employers need to be careful they don’t confuse an employee’s probation period with the Minimum Employment Period. The Minimum Employment Period is a term used under the Fair Work Act 2009 to define the minimum period of time an employee must serve with an employer before they’re eligible to make an unfair dismissal application if the employer terminates their employment. The Minimum Employment Period depends on the number of employees employed by the business. For a business with 14 or fewer employees, the Minimum Employment Period is 12 months. Where the business has 15 or more employees, it’s six months. A common question from members is whether an employee’s absence from work extends their probation period or Minimum Employment Period. The answer depends on the reason for the employee’s absence. Where the employee is on a period of unpaid leave, the period of leave will not count as service with the employer. For example, REEF was recently involved in a case where an employee was terminated by the employer exactly six months after the employment commenced. During the six month period, the employee had taken two days of unpaid personal/carer’s leave. The agency had 19 employees and therefore the applicable Minimum Employment Period was six months. Because of the two days’ absence, the employee had served less than six months and the Minimum Employment Period had not been met. Therefore, the employee was unable to bring an unfair dismissal claim against the employer. An unpaid period of absence must be distinguished from paid leave (for example, personal/carer’s leave, annual leave etc), which will count as service for the purposes of the Minimum Employment Period. It’s also been determined in a case before the Fair Work Commission that an employee’s absence on workers’ compensation is to be counted as service. The bottom line It’s important to understand that even where an employee’s contract of employment contains a probationary period, the right for an employee to bring an unfair dismissal claim will be regulated by the Minimum Employment Period served by the employee; that is, either six months or 12 months, depending on the size of the agency. Give REEF a call If you need help regarding the termination of an employee, call the REEF Helpline on 1300 616 170. One of our Workplace Relations Advisors will be able to give you the advice you need. Related Probation completed: Can an employee claim unfair dismissal? Members are often confused about whether an employee is eligible to claim unfair dismissal if they are terminated following the completion of the agreed probation period. Real Estate Industry Award: Out with the old, in with the new After a long battle, the Fair Work Commission has now finalised the four-year award review and the new Real Estate Industry Award will commence on 2 April 2018. Here's what you need to know before the changes kick in. Buying an agency? You need to understand employee entitlements The sale of a real estate agency is something most business owners will face at some point. Here are some things to be aware of when it comes to employee entitlements. Chucking a sickie: What amounts to 'temporary absence'? We've all had them. That employee who's constantly off sick, sending everyone else's working day into disarray. But what can you do about it? Here's what you need to know about "temporary absence" protections. Social media mishaps: Regulating an employee's posts More and more, industrial tribunals are being called upon to consider the nexus between social media posts and an employee's work where the employee has been terminated by the employer. Taking a pregnant pause: Unlawful termination due to pregnancy A recent court decision found that a real estate agency unlawfully terminated an employee on the final day of her probation period because she was pregnant and had taken personal and annual leave. Comments are closed.