Fair Work Act 2009

s.604 - Appeal of decisions

Appeal from ex tempore decision of Deputy President Boyce made on 12 November 2025 at Sydney in Matter Number U2025/13162 - Minimum employment period for the purposes of s 382(a) of the Fair Work Act 2009 (Cth) - Alleged break in period of continuous service - New contract for different position - Purported retrospective operation of contract - No break in continuous service - Permission to appeal granted - Appeal dismissed.

[1] This appeal concerns whether a former employee of Aditum Lawyers Pty Ltd, Corinne Gallacher, had completed the 'minimum employment period' so as to be 'protected from unfair dismissal' for the purposes of s 382(a) of the Fair Work Act 2009 (Cth) (the Act). In a decision delivered ex tempore on 12 November 2025, a Deputy President of the Commission found that Ms Gallacher had completed the minimum employment period. Aditum Lawyers disagrees and seeks permission to appeal and to appeal from the decision under s 604(1) of the Act.

[2] The Deputy President's conclusion is correct. We have reached the same conclusion, but for different reasons. The evidence established with sufficient clarity that Ms Gallacher had completed the minimum employment period. In the circumstances, permission to appeal should be granted, but the appeal must be dismissed.

[3] Aditum Lawyers operates a legal practice. There was no dispute at first instance that it is a 'small business employer' in that, at the time of the dismissal of Ms Gallacher, it employed fewer than 15 employees.[1] The consequence is that the 'minimum employment period' for Ms Gallacher was one year ending at the earlier of the time when Ms Gallacher was given notice of the dismissal or immediately before the dismissal.[2]

[4] Ms Gallacher is a solicitor. She appears to have commenced employment with Aditum Lawyers on or around 3 May 2024. Ms Gallacher asserted that she commenced working for Aditum Lawyers on 1 May 2024, but nothing turns on that question. The parties executed an 'Employment Agreement' on 5 June 2024 for the position of 'Principal/Senior Partner'. The employment agreement recorded a commencement date of 3 May 2024. That appears to have been to reflect the fact that Ms Gallacher had been performing work since 3 May 2024 and to regularise the contractual position of the parties.

[5] On the weekend of 24 and 25 August 2024, a dispute appeared to arise between Ms Gallacher and the principal of Aditum Lawyers, Carlyon Ward, in relation to the payment of commissions and whether Ms Gallacher had misrepresented that she held a principal practising certificate. On Monday 26 August 2024, a meeting occurred between Ms Gallacher and Mr Ward at which Mr Ward gave Ms Gallacher a letter of termination. The letter of termination dated 26 August 2024 commenced as follows:

We are writing to inform you that your employment with Aditum Lawyers is terminated with 1 week (7 days) notice, effective 2 September 2024.

This decision has been made after careful consideration, and it is final.

[6] Relevantly, the letter gave actual notice of termination and indicated that Ms Gallacher's employment would terminate on 2 September 2024. Notwithstanding the letter of termination, Ms Gallacher stated that Mr Ward's 'position was that if I accepted his reneging of the commission clause in my contract, I could stay, but if I was still firm about the entitlement to commission, I would be terminated'.

[7] Ms Gallacher said that she started to pack up her desk, but that Mr Ward intervened and asked where she was going and stated that he wanted her to serve the one week's notice period. Ms Gallacher says she sat down again and started preparing a file handover report for all of her matters. Ms Gallacher described what then happened as follows:

After about 3 days, by Wednesday, the dust had settled, we had calmed down, and by then my spouse and I had decided it was easier to take the $100,000 and no commission, and just do the job, but not try to grow the client base or perform unpaid overtime as I had been doing. It also meant that I didn't need to trust Carlyon Ward in order to get paid, I could rely on the bookkeeper processing the usual pay runs. Carlyon Ward and I agreed that the termination was voided. I specifically asked whether I needed a retraction letter to rescind the termination, but he said words to the effect that "you were never really terminated" and that "it needed to happen" because "the alpha has to withstand challenges from the pack" and thereafter the employment relationship just continued as normal.

[8] It should be observed that this statement is contained in a written submission dated 27 October 2025 which was filed by Ms Gallacher who represented herself in the proceedings at first instance. It is sufficiently apparent, however, that she relied upon the submission as containing her factual account of relevant events. In a witness statement subsequently filed in reply, Ms Gallacher indicated, under the heading 'Evidence', that: 'I repeat and rely on the Applicant's submissions dated 27 October 2025'.

[9] Ms Gallacher also provided copies of text messages she exchanged with Mr Ward on 29 August 2024 (that is, prior to the expiry of the period of notice of termination) which included the following exchange:

[11] As we have recorded, Mr Gallacher asserted that thereafter the employment relationship continued as normal. The material before the Deputy President also included a record of payslips received by Ms Gallacher during 2024 which indicates that she continued to be paid throughout August and September 2024.

[12] A further employment agreement was then executed for the position of 'Senior Associate'. Ms Gallacher said the contract was provided to her on 24 September 2024. In relation to its term, the employment agreement recorded:

Commencement Date of employment: Monday 23 May 2024.

This Agreement is intended to wholly replace and void the prior employment agreement (dated 21 May 2024) ('Prior Agreement') and the parties agree that the prior agreement is void ab initio and this agreement will apply from 23 May 2024 instead.

[13] The new employment agreement was subject to some negotiation prior to it being signed. On 24 September 2024, Ms Gallacher sent an email to Mr Ward as follows:

Just the variation date clause. That's the only part that can't be ab initio. I'm not interested in claiming commission or 24 weeks paid notice or anything like that, just the start date to protect my accrued employment entitlements and just to reflect the law re continuity under the FWA, that's all.

[14] Mr Ward replied on the same day in the following terms:

My interpretation was that the start date of this updated agreement is May and so the intention is that this agreement replaces the last one, rendering the last one void and this one active from May. I think we have the same intention.

[15] To the extent it is relevant, it appears that the parties intended that Ms Gallacher's employment be continuous and this provided the reason for the backdating of the employment agreement.

[16] Ms Gallacher's factual account was not disputed to any substantial degree in the evidence or submissions filed by Aditum Lawyers. Most relevantly, Mr Ward does not appear to have disputed that Ms Gallacher continued working in the legal practice notwithstanding the notice of termination dated 26 August 2024. Indeed, Mr Ward's assertion was that there was a break in employment not as a result of any period during which Ms Gallacher ceased performing work, but that she changed to a different role. Mr Ward's witness statement asserted:

23. The Applicant's first position as "Principal/Senior Partner" was a leadership role premised on qualifications she did not possess.

24. The second position as Senior Associate was a materially different role, with different duties, salary, and responsibilities.

25. The Applicant's assertion that the two engagements were continuous ignores the legal and factual reality that the first was terminated due to dishonesty and ineligibility.

26. Even if she continued working at the same premises, the termination of the first contract constituted a complete break in employment for the purposes of the Fair Work Act 2009 (Cth).

[17] Ms Gallacher was subsequently dismissed in late July 2025. It appears that, on 29 July 2025, a meeting occurred involving Ms Gallacher and Mr Ward in the course of which Mr Ward is alleged to have said 'pack your things and get out' and 'if you don't leave right now I'll call the police'. A letter dated 8 August 2025 was later sent to Ms Gallacher which stated: 'We write to confirm that your employment with Aditum Lawyers Pty Ltd was terminated on 29 July 2025 without notice'. The circumstances of, or reasons for, Ms Gallacher's dismissal are not presently relevant.

[18] As will be apparent, the issue which arises from these events concerns whether Ms Gallacher's employment was continuous from May 2024 to 29 July 2025 (in which case she had completed the minimum employment period) or whether there was a break in her period of continuous service in September 2024 (in which case she had not).

[19] Section 394(1) of the Act provides that a person who has been dismissed may apply to the Commission for an order under Division 4 granting a remedy. Section 390(1) provides that the Commission may order a person's reinstatement, or the payment of compensation to a person, if (among other things) the Commission is satisfied that the person is 'protected from unfair dismissal'.

[20] Section 382(a) provides that one element of a person being protected from unfair dismissal is that the person 'is an employee who has completed a period of employment with his or her employer of at least the minimum employment period'. The phrase 'minimum employment period' is defined in s 383 as follows:

(a) if the employer is not a small business employer - 6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer - one year ending at that time.

[21] In relation to an employee other than a casual employee, s 384(1) provides that an employee's period of employment with an employer 'is the period of continuous service the employee has completed with the employer. The meaning of 'service' and 'continuous service' is, in turn, defined in s 22 in the following terms:

22 Meanings of service and continuous service

(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).

[22] In short, the period of 'service' of an employee with an employer is the period during which the employee is employed by the employer. A period of 'continuous service' is a period in which the employee continues to be employed by the employer without a break.

[23] Ms Gallacher applied to the Commission for an unfair dismissal remedy on 13 August 2025. In its response, Aditum Lawyers objected to the application on grounds that the employment did not meet the minimum employment period. That matter was listed before Deputy President Boyce on 12 November 2025. At the commencement of the hearing, the Deputy President indicated (PN5) that 'we're down today to deal with this minimum period of employment issue'.

[24] The Deputy President announced his decision at the conclusion of the hearing and gave ex tempore reasons. The reasons of the Deputy President concentrated on the contractual position of the parties. The Deputy President noted that clause 2 of the second employment agreement provided for a commencement date of 23 May 2024 and stated (PN205):

The legal position is that the contract can have retrospective effect, such that it applies to the relationship or the conduct of the parties whilst that relationship, or conduct or acts of the parties continued during the relevant period that it has retrospective effect. There is no reason on which to find that clause, agreed to between the parties, is not valid and enforceable. ...

[25] The Deputy President noted that the unambiguous words of the contract could be applied and there was no warrant for referring to 'extrinsic material'. He concluded that (PN208):

In respect of the construction of clause 2 commencement date of the contract of employment between the parties, I find that that contract provides that it applies from the period of 23 May 2024 to the end of the applicant's employment, which was terminated effective 29 July 2025.

[26] The Deputy President observed (PN209) that, even if he was to have regard to extrinsic materials, the email communications between Ms Gallacher and Mr Ward indicated that the parties contemplated that the second employment agreement would operate from May 2024.

[27] The Deputy President expressed his conclusion as follows (PN213):

But given my findings in relation to the contract, I find that for the purpose of section 22 of the Fair Work Act, continuous service, the applicant's employment was continuous from that date to the date of her dismissal on 29 July 2025. It follows that the applicant has met the minimum employment period for a small business employer, and I will dismiss the respondent's jurisdictional objection in this case. An order to that effect will be issued today.

[28] The Deputy President made an order on the same day dismissing the 'minimum employment period objection' made by Aditum Lawyers.

[29] The notice of appeal contains four grounds. Grounds 1 and 4 contend that the Deputy President erred in treating the parties' contractual intention and the retrospective wording of the second employment agreement as being capable of establishing continuous service on the part of Ms Gallacher for the purposes of s 22 of the Act. Grounds 2 and 3 contend that the Deputy President erred in finding that the parties' correspondence evidenced an intention to preserve the continuity of her 'employment' rather than 'entitlements' and that the Deputy President failed to give proper consideration to the facts, including the existence of two different roles, that Ms Gallacher was terminated in August 2024 for dishonesty and re-engaged for a completely different role on different terms and that there was no 'transfer of business' for the purposes of s 22(5)-(7).

[30] There is no right of appeal from a decision of the Commission. Aditum Lawyers can only appeal with permission of the Full Bench under s 604(1) of the Act. In the case of a decision in unfair dismissal proceedings, s 400(1) provides that the Commission can only grant permission to appeal if satisfied it is in the public interest to do so. We are satisfied it is in the public interest to grant permission to appeal in this matter. In our view, the Deputy President erred by regarding the backdating of the second employment agreement as in itself dictating a conclusion that Ms Gallacher's service was continuous notwithstanding the events of August and September 2024. It is in the public interest that permission to appeal be granted to correct that error and provide guidance in relation to that factual circumstance. However, for the reasons which follow, the conclusion of the Deputy President was nonetheless correct and the appeal must be dismissed.

[31] The definition in s 22(1) of the Act provides that 'service' only includes a period in which the employee was employed by the employer. The reference to an employee being 'employed' is a reference to the existence of an employment relationship. The employment relationship is inherently a contractual one such that there can be no employment relationship without a contract of employment.[3] The employment relationship ends when the contract of employment ends, but it can end earlier in circumstances where one party has repudiated the contract and the repudiation has not been accepted by the other party.[4] The classic instance in which the employment relationship might end before the employment contract arises where an employer summarily dismisses an employee without justification.[5] Similarly, a contract of employment can come into existence before the employment relationship is formed.[6]

[32] Although the employment relationship arises from the existence of a contract, we do not consider that a contract can retrospectively deem an employment relationship to exist if it did not. If there was a period in which Ms Gallacher was not 'employed' by Aditum Lawyers, a later contract cannot deem the employment to be continuous through a device of backdating the commencement date of the contract. If there was a gap in Ms Gallacher's service in early September 2024, the second employment agreement cannot alter that fact by providing that the agreement was to commence at an earlier date. With respect, the Deputy President erred in treating the terms of the second employment agreement as establishing that Ms Gallacher's service was continuous. In this respect we note that the Deputy President was not assisted by the parties' focus on the contractual terms rather than the employment relationship. Grounds 1 and 4 are established.

[33] However, the error is immaterial. That is because the evidence demonstrates that Ms Gallacher's employment continued notwithstanding the events of late August and early September 2024. Ms Gallacher was given notice of termination on 26 August 2024. The letter provided actual notice. That is, the employment was not to end until the expiry of the period of notice on 2 September 2024. Before that day came, Ms Gallacher and Mr Ward communicated on 29 August 2024 in a manner that makes it sufficiently clear that they had agreed her employment would continue 'forever' or at least on an ongoing basis. In any event, Ms Gallacher's unchallenged evidence was that, as a matter of fact, she continued to perform work, was paid for doing so and that the employment relationship continued as normal.

[34] From a contractual perspective, there are two possible consequences of that course of events. The better view is that there was an agreement to withdraw the notice of termination dated 26 August 2024. Although there is generally no unilateral right to withdraw a notice of termination, notice can be withdrawn with the consent of the other party.[7] After notice of termination is given and before the notice has expired, the parties could agree that the employment will continue under the same contract or by making a new contract. We consider that the appropriate inference to be drawn from an objective assessment of the conduct of the parties is that Mr Ward agreed to withdraw the notice of termination on 29 August 2024 and Ms Gallacher's employment continued as a result.

[35] The alternative way of looking at the events is that the notice of termination of 26 August 2024 resulted in Ms Gallacher's existing contract of employment terminating on 2 September 2024. Given that Ms Gallacher continued to perform work for Aditum Lawyers and to be paid, even if the existing contract was terminated, a new contract would be taken to have been formed by the conduct of the parties from 2 September 2024.[8] As such, there was no period during which Ms Gallacher was not employed in the sense that there was a contract of employment in existence. That conclusion does not depend on the backdating of the later employment agreement entered into on 24 September 2024.

[36] Whether (as we consider is the better view) the notice of termination was withdrawn by Mr Ward with the consent of Ms Gallacher or (as is also possible) the initial employment agreement terminated in accordance with the notice and was replaced by a new contract formed by the conduct of the parties, Ms Gallacher remained in employment throughout. As such, Ms Gallacher was continuously employed from May 2024 to 29 July 2025 and had completed the minimum employment period for the purposes of s 382(a).

[37] It remains to deal with grounds 2 and 3. Ground 2 alleges an error on the part of the Deputy President in concluding that the email communications between the parties in September 2024 indicated a common intention that Ms Gallacher's employment was continuous. The ground has no merit. The Deputy President did not rely on the email communications other than as a supporting consideration. In any event, it is unnecessary to rely upon any evidence of the subjective intentions of the parties to conclude that Ms Gallacher's employment was continuous. As we have explained, an objective assessment of the conduct of the parties makes clear that Ms Gallacher remained employed notwithstanding the events of late August and September 2024.

[38] Ground 3 alleges a failure on the part of the Deputy President to give proper consideration to evidence as to the different roles in which Ms Gallacher was employed under the first employment agreement and the second employment agreement. The ground is misconceived. The parties dispute the extent to which there was change in the role and duties of Ms Gallacher. It is unnecessary to resolve that dispute. An employment relationship is not broken merely by the fact that the parties make a new contract of employment or the employee moves to a different position.[9] Even if we accept that the senior associate role was very different from the principal/senior partner role, Ms Gallacher continued to be employed by Aditum Lawyers notwithstanding the change in her position.

[39] For these reasons, permission to appeal should be granted but the appeal dismissed. The Deputy President was correct to find that Ms Gallacher had completed a period of employment of at least the minimum employment period for the purposes of s 382(a) of the Act.

[40] The Full Bench makes the following orders:

• (a) Permission to appeal is granted;

• (b) The appeal is dismissed.

B Flaherty, of counsel, instructed by C Ward for Aditum Lawyers Pty Ltd.

[1] Fair Work Act 2009 (Cth), s 23(1).

[2] Fair Work Act 2009 (Cth), s 383(a).

[3] Fair Work Ombudsman v Valuair Ltd (No 2) [2014] FCA 759; (2014) 224 FCR 415 at [76] (Buchanan J); Broadlex Services Pty Ltd v United Services Union [2020] FCA 867; (2020) 296 IR 425 at [61] (Katzmann J).

[4] Lattouf v Australian Broadcasting Corporation (No 2) [2025] FCA 669 at [41] (Rangiah J).

[5] Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25; (1946) 72 CLR 435 at 450-451 (Latham CJ).

[6] See, for example, Turner v Australasian Coal and Shale Employees Federation [1984] FCA 275; (1984) 6 FCR 177 and Australian Federation of Air Pilots v Jetstar Airways Pty Ltd [2014] FCA 15 at [7]- [8] (Pagone J).

[7] Birrell v Australian National Airlines Commission [1984] FCA 378; (1984) 5 FCR 447 at 457-458 (Gray J).

[8] Damevski v Guidice [2003] FCAFC 252; (2003) 133 FCR 438 at [3] (Wilcox J) and [81]-[89] (Marshall J).

[9] See, for example, Flinders Ports Pty Ltd v Woolford [2015] SASCFC 6; (2015) 121 SASR 485 at [8]- [13] (Kourakis CJ) and [74]-[75] (Stanley J).

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