A Full Bench of Fair Work Australia (FWA) has upheld a decision which found that workers’ compensation absences count towards the six month minimum employment period which must be completed for an employee to gain access to the unfair dismissal jurisdiction.

An employee suffered a work related injury and made a workers’ compensation claim, which was accepted by the employer’s insurer. Shortly after the employee resumed his duties, his employment was terminated. The employee filed an unfair dismissal application. At first instance, FWA dismissed the employer’s argument that the workers’ compensation absence did not count towards the employee’s length of service and, therefore, the employee had not met the six month qualifying period. The employer appealed.

The Full Bench held that a workers’ compensation absence is not an “unpaid authorised absence” which is excluded from the calculation of an employee’s period of “continuous service”. The period was not “unpaid” because the employee received workers’ compensation payments. The Full Bench noted that the fact that the payments were made by the employer’s insurer (not the employer) was irrelevant because the payments “were made pursuant to a legal obligation upon the employer”.

WorkPac Pty Ltd v M Bambach [2012] FWAFB 3206 (31 May 2012)