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The Commission clarifies when a qualifying period ends

Written by: Sharlene Wellard

Article Overview: In the recent decision of Tania Maree Kabel-Pluck v Visy Pulp and Paper Pty Ltd, the Commission found that an employee was not prevented from making an unfair dismissal claim because the date of termination took place after the expiration of the probationary period and the qualifying period.

The Commission clarifies when a qualifying period ends

The Workplace Relations Act 1966 provides that an employee whose employment is terminated during a qualifying or probation period cannot make an unfair dismissal claim. Ms Kabel-Pluck commenced employment as a People Relations Advisor on 2 July 2007. A six month probationary period was outlined in her written contract. Visy requested that Ms Kabel-Pluck attend a meeting to review her employment on 31 December 2007. Ms Kabel-Pluck told Visy that she would be absent after Christmas but would be able to attend the meeting on 2 January 2008. It was Visy’s belief that this period was unauthorised leave. Ms Kabel-Pluck was given notice of termination of her employment at the meeting held on 2 January 2008.

The date the termination took effect was an important issue for the Commission to determine. Visy maintained that the employee’s employment was terminated on 31 December because on that day the decision to dismiss Ms Kabel-Pluck was made and the reason that the employee was not notified of the termination was because of her unauthorised absence. The Commission noted that Visy could have lawfully asked Ms Kabel-Pluck to attend the meeting on 31 December 2007, if indeed she was absent from work without permission. There was no indication that Ms Kabel-Pluck was trying to avoid being told of her termination, consequently the Commission found that the Ms Kabel-Pluck was not dismissed on 31 December 2007. The Commission used calendar months to calculate that the probation period ended on 1 January 2008.
Ms Kabel-Pluck’s employment was terminated on 2 January 2008, after the conclusion of the qualifying and probation period, and accordingly, Ms Kabel-Pluck was eligible to make an application for unfair dismissal.

HR TIPS
- Employers should make sure that they are certain about the date on which a probation period or the statutory qualifying period will end.

- Because employees cannot make an unfair dismissal claim if they are given notice during a qualifying period that their employment will end, employers should ensure that an employee’s performance is monitored during the qualifying period and that the employee is given notice of that their employment will be terminated within the qualifying period if the employee is not suitable to the business.

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Article Tags: absent from work, belief that, calendar months, christmas, conclusion, employm, hr tips, kabel, notice of termination, pluck, probation period, probationary period, unauthorised absence, unfair dismissal claim, workplace relations act



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