FWC clarifies continuous service requirements despite ongoing leave accrual
17 Apr 2025
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The Fair Work Commission (FWC) recently dealt with a case concerning an unfair dismissal application where the key question was whether a worker's period of employment satisfied the minimum employment period required under the Fair Work Act 2009.
The worker argued that despite his formal resignation, his employment had actually been continuous because he had negotiated a higher salary before his resignation took effect. He pointed to payslips showing he had taken annual leave during the gap period rather than receiving a termination payment.
The employer countered that the resignation had genuinely ended the employment relationship, and the worker was later rehired on a new contract after their chosen replacement candidate withdrew from consideration.
The worker started employment as an estimator with a Queensland plumbing business in March 2023. Though based in Queensland, he worked remotely from Melbourne due to family health issues, under an agreement that was initially for 12 weeks but extended several times.
On 3 June 2024, the worker resigned by email, stating: "Please accept this letter as a formal notification that I am resigning from my position as Estimator with [the employer]. My last day will be Friday, 14 June [2024]."
The construction manager testified he had tried to convince the worker to stay during the notice period....
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