Left for Days, Lost Your Rights? The Hidden Risk of Resigning Then Returning to Work
The Fair Work Commission has confirmed that resigning from your job can reset your minimum employment period – even if you are re-hired by the same employer days later, and even if your payslip shows continuous leave accrual.
A Queensland estimator brought an unfair dismissal claim after being terminated in December 2024. The key question was whether he had the required six months’ continuous service under the Fair Work Act.
The employee argued that although he emailed a resignation effective mid-June 2024, he had actually secured a higher salary before the resignation took effect, and his payslip showed annual leave taken in the gap instead of a termination payout.
The employer said the resignation genuinely ended the employment relationship. They had advertised the role and offered it to another candidate, only re-engaging the worker after that candidate withdrew. The worker had been away from the business for only a few days before returning to start the new arrangement.
The Commission accepted evidence from multiple employer witnesses that no agreement to return was reached until after the resignation took effect. While the employee worked from his re-hire date through to his dismissal in December, the Commission found this period was still short of the minimum six months required.
The fact that leave was carried over was explained as a tax-driven choice by the employee, not proof of ongoing service. The Commission ruled this administrative handling of entitlements did not change the legal reality – the resignation ended the first period of employment, and the minimum period started again upon re-hire.
Because the later period of employment was less than six months before dismissal, the application failed at the jurisdiction stage.
Key takeaways for employees
Resigning almost always breaks your continuous service, even if you return within days.
Carrying over leave or avoiding a termination payout does not preserve your legal service period for unfair dismissal purposes.
The minimum employment period clock resets after a resignation unless a statutory exception applies.
Even if you return and work for several more months, your earlier service will not “count back” towards the unfair dismissal threshold.
