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5 things you need to remember about the minimum employment period

By Charles Power on November 16th, 2012

Workplace Bulletin

In Wednesday’s Bulletin, I discussed the minimum employment period (MEP), which is the minimum period of service that an employee must complete before being able to access Fair Work Act unfair dismissal laws.

Here are 5 important things you need to remember about the MEP:

1.  Dismissal does not take effect until notice of termination has been communicated to the employee. Therefore, if a dismissal notice is posted to an employee before the MEP expires but is received by the employee after the MEP has expired, the dismissal will not have taken place within the MEP.

2.  The MEP includes service by the employee with an earlier employer in a transfer of business situation. For example, in Hillie v World Square Pub ([2012] FWA 6806) a casual started working for a hotel in July 2009 as an employee of Wanslea Grove. In August 2011, at the behest of the hotel owners, a new company took over the management of the hotel and the employment of the casual employee. The new employer dismissed the employee 4 months later. The employee made an unfair dismissal claim. The employer argued that the dismissal occurred within the MEP. Fair Work Australia ruled that the service with Wanslea Grove should be included because the employment transferred with the business.

Please note: In a transfer of business situation, a new employer which is not an associated entity of the old employer can inform a transferring employee in writing before their employment commences that it will not recognise his/her service with the old employer. In that situation, the service with old employer will not count in working out whether the employee has served the MEP with the new employer.

3.  The MEP includes service with associated entities (e.g. subsidiaries, parent company). For the purpose of working out whether the employer employs less than 15 employees at the time of dismissal (which means that the MEP is 12 months rather than 6 months) you count all employees of associated entities as well as your own.

4.  The MEP includes any period of paid leave. Following the decision of the Full Bench of Fair Work Australia in WorkPac Pty Ltd v M Bambach [2012] FWAFB 3206, this includes any period in which the employee is absent from work receiving workers’ compensation.

5.  The MEP includes any period of casual employment that was on a regular and systematic basis, during which the employee had a reasonable expectation of continuing employment.

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