Fair Work Commission upholds law around ‘continued service’ in a recent case

The Fair Work Commission recently adjudicated a case centered around an important employment law principle. It considered whether an employee who resigned from a full-time job and then continued as a casual worker for the same employer fractured her period of continued service.

Elizabeth Rankine was an employee at a not-for-profit organisation called Aboriginal Sobriety Group Indigenous Corporation ( “ASGIC”) which provides rehabilitation services to indigenous communities. 

• She started her job as a casual worker in February 2018 and later became a permanent employee in the company ASGIC, in 2020 rejected her request to shift the work roster from Fridays to Sundays. Due to non-acceptance of the request, she submitted her resignation to the HR, which was also denied calling it an 'emotional decision'.
• On agreement between the two conflicting parties, Rankine was shifted to a casual work roster.
• She continued working on casual shift for 3 months before recommencing her work as a full time employee in December 2020.
• Rankie was later dismissed, two months after joining as a full time employee.

Rankine filed a case of unfair dismissal which was challenged by the ASGIC asserting that given her resignation, she had not met the six-month employment period required by the Fair Work Act. The Fair Work Commission repudiated the ASGIC’s arguments and found that ‘continuous service’ should be seen as an unbroken employment relationship and not necessarily an unbroken employment contract. 

The Commission further said that Rankine agreed to become a casual employee immediately after she gave her resignation as a full-time employee thereby remaining employed with the company. It also pulled up ASGIC on the fact that they did not pay her leave entitlements immediately which established a strong inference that it accepted the employment contract to be continuous.

The Commission ruled in Rankine’s favour solidifying Rankine’s eligibility to bring an unfair dismissal claim as her service was not broken by her resignation. The five-day pay gap between the end of full-time employment and the beginning of her first casual shift was not acknowledged or entitled by the company. It held that Rankine had served the minimum employment period required by s 382(2)(a) and imparted justice in this case.