Facts

Mr Erceg filed an unfair dismissal claim following the termination of his employment in November 2006. Mr Erceg was employed by ACG for an eight month period, from April until November 2006. For the first 5 months of his employment, Mr Erceg worked under a series of casual engagements. In early September 2006, he was offered and accepted full-time employment under an employment contract which contained a one month probationary period. There was no agreement regarding the qualifying period of employment.

AGC argued that Mr Erceg could not make an unfair dismissal claim because he had not completed the six month qualifying period of employment. AGC stated that the casual and full-time contracts of employment were ‘separate and distinct contracts’ and that an additional qualifying period applied when Mr Erceg commenced full-time employment.

Decision

Commissioner Williams agreed with AGC. He stated that the series of casual engagements were separate from the full-time contract of employment and that it was the full-time contract that was the subject of the unfair dismissal claim.

The Commissioner found that Mr Erceg had been a full-time employee for less than three months. He had therefore not completed the six month qualifying period of his full-time employment and was excluded from making an unfair dismissal application.

Conflicting Decisions

The Commissioner’s decision in this matter conflicts with that of Denise Shepherd v Janrule Pty Ltd, discussed in our last edition of Employer Lawyer. In that case, Commissioner Deegan found that a woman who had accepted a new role with the same employer (after six years of employment) had completed her qualifying period of employment, even though she was terminated after two months in the new position. Although in that case there was no alteration to Ms Shepherd’s employment status (e.g. from casual to full-time), the Commissioner found that the wording of the legislation should be given its ordinary literal meaning “so that any employee who has completed six months employment with an employer is capable of making an application under s 643 of the WR Act.”

Implications for Employers

The conflict between these two recent decisions is likely to generate further uncertainty in the jurisdiction of unfair dismissal. At this point, it appears that employees who change positions within an organisation (but not their employment status) are not subject to an additional qualifying period.
By contrast, employees whose status of employment changes (e.g. from casual to full-time) will be subject to an additional qualifying period. This appears to be especially the case where the prior casual engagement has not been regular and systematic but rather a series of casual engagements.

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