NSW Unfair dismissal question

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Curiousmum

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24 July 2020
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My daughter was recently unfairly dismissed (NSW) and we are taking it to the commission. However the other party has informed us that we do not qualify to appeal because they have fewer than 15 employees and my daughter, who was employed for 54 weeks of the year from start date to termination date, has had 4 weeks of unpaid leave during that time, including some sick days. They are arguing she has not had 52 weeks of employment so cannot qualify to appeal the dismissal. Is that true?
 

Rob Legat - SBPL

Lawyer
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16 February 2017
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Yes. Unpaid personal leave does not count towards the length of the employee's continuous service for calculating unfair dismissal. Have a look here: What is an excluded period?
 

Curiousmum

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24 July 2020
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Thank you. One more question if you wouldn’t mind. When the unfair dismissal rules refer to less than 15 employees, is this a head count or is it 15 FTE employees?
 

Rob Legat - SBPL

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To count the relevant employees towards the 15:
- Count all employees employed immediately prior to the time of dismissal. The person being dismissed counts;
- Include all regular and systematic casual employees (this doesn't necessarily mean all casual workers); and
- Include employees of related entities and those based overseas.

The count is done at the earliest of:
- When the employee is told their employment is terminated; or
- When given their notice of termination.

If a number of employees are terminated together, the count is done from prior to the first termination.
 

Curiousmum

Active Member
24 July 2020
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So sorry to post yet another question but.... if a company has more than 15 employees then the work period required for unfair dismissal reduces to 6 months I believe. Does this mean, for the purpose of continuous service, all unpaid leave added up over the course of the employment period is then taken away from the total period? What I’m trying to say is if my daughter had 3 weeks unpaid sick leave after 4 months and then a weeks holiday 4months later before being dismissed roughly 4 months later, will this count as 6 months continuous service?
 

Rob Legat - SBPL

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1. Non-small business employees need to have been employed for 6 months. Small business employees need to have been employed for 12 months.

2. Excluded periods do not break continuous service, but don't count towards it. So, yes, take the total period from start date to termination date and take away the excluded period(s) (i.e. such as unauthorised absences and most unpaid leave). For your example, there were roughly 12 months minus a potential total of 4 weeks = more than 6 months.

3. Are directors employees? Not necessarily. That would require an examination of the relationship they have with the company, including how they are remunerated. I would suspect that if the tipping point involves them being counted as employees, they're going to fight to get excluded.