s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - Jurisdictional objection - Minimum employment period completed - Applicant is a person who is protected from unfair dismissal - Objection dismissed - Application to proceed

[1] On 6 October 2025, Ms Alicia Wright (applicant) applied under s 394 of the Fair Work Act 2009 (Cth) for an unfair dismissal remedy. Ms Wright says that was unfairly dismissed by Ekasher Pty Ltd who operated The Coffee Club franchise at Plenty Valley (employer/respondent). Ekasher objected to the application, alleging that Ms Wright has not completed the minimum employment period as her employment started on 1 July 2025 and she was a casual employee who did not have regular employment or a reasonable expectation of continuing employment.

[2] This decision deals only with whether Ms Wright has completed the minimum period of employment within the meaning of s 383 of the Act, so as to be a person protected from unfair dismissal within the meaning of s 382 of the Act. For a small business, the minimum employment period is one year. For all other businesses, it is 6 months.

[3] The minimum period of employment that Ms Wright must have completed is one year. This is because Ekasher employed 13 employees at the time of Ms Wright's dismissal, and so it is a small business employer within the meaning of s 23 of the Act.

[4] Section 384 defines the period of employment:

(1) An employee's period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(a) a period of service as a casual employee does not count towards the employee's period of employment unless:

(i) the employment as a casual employee was as a regular casual employee; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee's period of employment with the new employer.

[5] Ms Wright says that she had been employed with a previous franchisee (Yili Pty Ltd) who operated the Coffee Club Plenty Valley, and that this employment started on 6 April 2018. Ekasher does not dispute this, but says that there was no transmission of business between it and the previous employer.

[6] Ekasher purchased the business from Yili Pty Ltd and entered into a Franchise Agreement to operate The Coffee Club Plenty Valley on 9 May 2025. It says that it became a franchisee on 1 July 2025. Ekasher entered into an employment contract with Ms Wright dated 16 June 2025, which said that the employment commenced on 18 June 2025. I find that Ms Wright's employment with Ekasher commenced on 18 June 2025. However, that is not the end of the matter.

[7] Section 311 of the Act deals with when a transfer of business occurs:

Meanings of transfer of business , old employer , new employer and transferring work

(1) There is a transfer of business from an employer (the old employer ) to another employer (the new employer) if the following requirements are satisfied:

(a) the employment of an employee of the old employer has terminated;

(b) within 3 months after the termination, the employee becomes employed by the new employer;

(c) the work (the transferring work ) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer;

(d) there is a connection between the old employer and the new employer as described in any of subsections (3) to (6).

(2) An employee in relation to whom the requirements in paragraphs (1)(a), (b) and (c) are satisfied is a transferring employee in relation to the transfer of business.

Transfer of assets from old employer to new employer

(3) There is a connection between the old employer and the new employer if, in accordance with an arrangement between:

(a) the old employer or an associated entity of the old employer; and

(b) the new employer or an associated entity of the new employer;

the new employer, or the associated entity of the new employer, owns or has the beneficial use of some or all of the assets (whether tangible or intangible):

(c) that the old employer, or the associated entity of the old employer, owned or had the beneficial use of; and

(d) that relate to, or are used in connection with, the transferring work.

(4) There is a connection between the old employer and the new employer if the transferring work is performed by one or more transferring employees, as employees of the new employer, because the old employer, or an associated entity of the old employer, has outsourced the transferring work to the new employer or an associated entity of the new employer.

New employer ceases to outsource work to old employer

(5) There is a connection between the old employer and the new employer if:

(a) the transferring work had been performed by one or more transferring employees, as employees of the old employer, because the new employer, or an associated entity of the new employer, had outsourced the transferring work to the old employer or an associated entity of the old employer; and

(b) the transferring work is performed by those transferring employees, as employees of the new employer, because the new employer, or the associated entity of the new employer, has ceased to outsource the work to the old employer or the associated entity of the old employer.

New employer is associated entity of old employer

(6) There is a connection between the old employer and the new employer if the new employer is an associated entity of the old employer when the transferring employee becomes employed by the new employer.

[8] There is no dispute between the parties that Ms Wright's employment with her old employer ended, that she became employed by Ekasher within 3 months of that end that she performed work for Ekasher that was the same or substantially the same as the work she performed for the old employer, being a barista.

[9] Ekasher provided me with information that it had entered into a business sale agreement with Yili Pty Ltd to purchase the business operating the Coffee Club franchise and the transaction included plant and equipment and trading stock but there was no written agreement to transfer employees or recognise their prior continuous service.

[10] On the basis of the above information, I am satisfied that there is a connection between the old employer and the new employer under s 311(3) of the Act. This means that there was a transfer of business from Yili Pty Ltd to Ekasher, by operation of the Act despite there being no written agreement that dealt with it.

Does Ms Wright's employment with the old employer count as service with Ekasher?

[11] Section 22 of the Act defines service and continuous service. Service with one employer counts as service with another employer if there is a transfer of employment: s 22(5). Transfers of employment can occur between associated entities (s 22(7)(a)) and non-associated entities (s22(7)(b)). There is no evidence before me that Ekasher and the previous employer are associated entities. I am satisfied that there was a transfer of Ms Wright's employment under s 22(7)(b) of the Act.

[12] There is no evidence before me that Ekasher informed Ms Wright in writing before her employment with them started that her period of service with Yili Pty Ltd would not be recognised, as required by s 384(2)(b)(iii) of the Act. Ms Wright says that she has not received any such information. So, I am satisfied that the period of service that Ms Wright's employment completed for Yili Pty Ltd counts as service with Ekasher as Ms Wright was a transferring employee.

[13] There is no dispute between the parties that Ms Wright was a casual employee. In order to be protected from unfair dismissal, Ms Wright's casual employment must be as a regular casual employee with a reasonable expectation of continuing employment on a regular and systematic basis under s 384(1) of the Act.

[14] On my request, Ms Wright provided me with her rosters from 1 October 2024 until 1 October 2025. Ekasher also provided rosters for the period from 1 July 2025 to 1 October 2025. Those rosters show that Ms Wright regularly worked at least one shift each week, and more often 3 or more shifts except for the weeks leading to the end of her employment with Ekasher. I am satisfied based on my review of the rosters that Ms Wright's casual employment was as a regular casual employee, and she had a reasonable expectation of continuing employment.

[15] Based on the above, I am satisfied that Ms Wright is a person who is protected from unfair dismissal as she has completed the minimum employment period of at least one year, as a regular casual employee who is a transferring employee who had not been informed in writing that her period of service with her old employer would not be recognised as service with the new employer (Ekasher).

[16] I will shortly list this matter for a case management conference.

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