s.394 - Unfair dismissal

Application for an unfair dismissal remedy - whether applicant met minimum employment period - evidence that the minimum employment period has not been met - application dismissed.

• [1] On 6 August 2025, Ms Annette Allan made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) alleging she was dismissed from her employment with Bowen Transit Pty Ltd (the Respondent) and the dismissal was harsh, unjust or unreasonable.

• [2] In her application, Ms Allan stated that she commenced working with the Respondent on 25 November 2024 and she was dismissed on 31 July 2025. On the face of it, it would appear that Ms Allan has met the minimum employment period of six months in order to be able to bring an unfair dismissal application.

• [3] The Form F3 completed by the Respondent did not note any jurisdictional objections.

• [4] At a telephone conference convened before me on 14 October 2025, I informed the parties that I had reservations that Ms Allan had met the minimum employment period of six months. Ms Allan commenced as a casual school bus driver late in Term 4, 2024 and then did not perform any further work until the commencement of Term 1, 2025.

• [5] I discussed with the parties the definition of 'service' within the Act and my concerns that Ms Allan had not performed work for many weeks across the nominal seven months of employment.

• [6] I directed the Respondent to provide evidence of the days and weeks worked by Ms Allan in her employment. The Respondent provided evidence demonstrating the following:

• [7] Ms Allan is not an employee protected from unfair dismissal unless she can demonstrate that she has met the minimum employment period of six months.[1]

• [8] Section 384 of the Act relevantly states:

(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 time when the person is given notice of the dismissal; and

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

• [9] Section 22 of the Act provides the definition of "service" and "continuous service". It relevantly states:

(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).

(b) any period of unpaid leave or unpaid authorised absence, other than:

(i) a period of absence under Division 8 of Part 2-2 (which deals with community service leave); or

(ii) a period of stand down under Part 3-5, under an enterprise agreement that applies to the employee, or under the employee's contract of employment; or

(iii) a period of leave or absence of a kind prescribed by the regulations;

(c) any other period of a kind prescribed by the regulations."

• [10] The weeks in which Ms Allan did not work during her employment, due to school holidays or otherwise, and which was not paid, does not count towards service.

• [11] Ms Allan provided correspondence to the Commission stating that she performed some days of training in October 2024 and November 2024 which to-date, has not been paid. The dates claimed would not be sufficient to ensure Ms Allan meets the minimum employment period. Ms Allan stated that she otherwise agreed with the evidence provided by the Respondent to the Commission.

• [12] On 21 October 2025, the following correspondence was sent to the parties:

The Commissioner notes the correspondence of the parties, notably the spreadsheet provided by the Respondent.

If the Applicant agrees that she is unable to satisfy the minimum employment period of six months, she should withdraw her application. This can be done by emailing chambers and the Respondent stating that the application is withdrawn.

If the Applicant considers she is entitled to payment for the earlier days, that is a separate matter and the parties should hold discussions. If the matter is not resolved to the Applicant's satisfaction, it is a matter that can be pursued in a Court of competent jurisdiction."

• [13] Later in October 2025, Ms Allan sought an adjournment to the directions I had earlier issued. I refused the adjournment on the basis that Ms Allan had not filed any material relevant to the minimum employment period issue and had agreed that the Respondent's evidence was correct other than in respect of the training days she stated that she performed.

• [14] On the evidence before the Commission, noting that even if Ms Allan's days of training were included, the minimum employment period of six months has not been met.

Ms Allan's application for unfair dismissal is dismissed. An Order [PR793396] will be issued concurrently with this decision.

[1] Fair Work Act 2009 (Cth) ss. 382-383, 396.

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