s.394 - Unfair dismissal

Application made pursuant to s.394 of the Fair Work Act 2009 for an unfair dismissal remedy - minimum employment period not served - application dismissed.

• [1] Mr Askal Shrestha (the Applicant) has made an unfair dismissal application against Sarah M Greaves (the Respondent) requiring a determinative conference, at which his evidence was received, along with evidence from Ms Sarah Greaves (Director of the Respondent) and Mr Tristan Harkess (Financial Manager for the Respondent). As to whether the application satisfies s.396(a) of the Fair Work Act 2009 (the Act), I noted the application was made after Mr Shrestha was notified of his dismissal but before the dismissal took effect. Having heard from the parties on the premature nature of the application, I determined that this was an appropriate case in which to exercise the discretion the Act affords to the Commission to waive an irregularity under s.586(b) of the Act.[1] In addition, the material before me does not suggest, that the dismissal was a case of "genuine redundancy" within the meaning of s.389 of the Act (s.396(d) and s.385(d)).

• [2] I am, however, also required to be satisfied that Mr Shrestha is a "person protected from unfair dismissal" (s.396(b)). Determining whether Mr Shrestha is a "person protected from unfair dismissal" in this case requires me to be satisfied that he had completed the applicable "minimum employment period." To do so, I am required to consider whether the Respondent was a "small business employer" at the material time. If I am ultimately satisfied that Mr Shrestha is a "person protected from unfair dismissal" and that the Respondent was a "small business employer" at the material time, I will be required to determine whether the dismissal was consistent with the Small Business Fair Dismissal Code (s.396(c) and s.385(c)). Accordingly, I will deal with the s.396(b) matter first.

• [3] As to whether the Respondent was a "small business employer" when Mr Shrestha was given notice of his dismissal on 7 July 2025, Mr Shrestha submitted that the Fair Work Commission (the Commission) should be sceptical about the evidence and submissions of the Respondent in relation to the number of its employees because its position had changed throughout the proceeding and its documentation was incomplete. To assert the Respondent was not a "small business employer", Mr Shrestha relied on a list of employees he had derived from the Respondent's website, but he conceded that his list was not applicable to 7 July 2025 and also advised that he had not met 3 of the individuals on his list. As regards these 3 individuals, the evidence established that they commenced their employment after 7 July 2025.[2]

• [4] Ultimately, I prefer the testimony of Mr Harkess, whom I consider gave credible evidence when explaining the payroll reports generated by the Xero software that are relied upon by the Respondent. From this evidence, I am satisfied that:

a) While the Irises Support Services Pty Ltd entity only became operational on 1 July 2025, the Xero software operates in such a way that its name attaches to the historical records pertaining to the operations of the Respondent/Sarah M Greaves entity prior to this date.

b) At the material time, the Respondent employed some workers who were paid weekly and others who were paid fortnightly.

• c) The Payroll Employee Summary for 7 July 2025, identifies 10 employees who were paid weekly.[3]

• d) The Payroll Employee Summary for the period 30 June 2025 - 14 July 2025 records employees paid both weekly and fortnightly and identifies a total of 13 employees, including the 10 employees referred to in (c) above who were paid weekly.[4]

e) To this number can be added Ms Greaves who, while not on the Payroll Employee Summaries, is also an employee of the Respondent.

• f) The list of 18 employees in the email sent to my Chambers on 14 October 2025 by Mr Shrestha's lawyer was derived from the Respondent's website and includes the 13 employees referred to in (d) above, Ms Greaves, an employee who was named twice and 3 other employees whose employment commenced after 7 July 2025.[5]

• [5] Having regard to these matters, I am satisfied that the Respondent employed no more than 14 employees as at 7 July 2025 and was therefore a "small business employer" when Mr Shrestha was given notice of his dismissal. The consequence of this finding is that the applicable minimum employment period in this case was one year (s.383(b)).

• [6] Mr Shrestha first commenced employment with the Respondent as a Disability Support Worker on a casual basis from approximately 7 June 2023 and he said he was promoted to the position of team leader on 10 October 2023. Mr Shrestha submitted that his engagement as a casual employee was regular and systematic and he argued there were no breaks during his employment with the Respondent.

• [7] Both parties drew attention to Mr Shrestha's wife having had a miscarriage. Mr Shrestha produced evidence of a text message he sent to Ms Greaves on 25 June 2024 advising her of this fact. Both Mr Shrestha and Ms Greaves said that it was also around this time that Mr Shrestha started working as a support co-ordinator with another company called Onside. Mr Shrestha confirmed that he was engaged by Onside on a full-time basis in a role that allowed him to work from home.

• [8] Mr Shrestha stated that because of his wife's miscarriage, he decided not to take shifts he was being offered with the Respondent through the Shiftcare "App" during the July/August period of 2024. Mr Shrestha explained that when a shift with the Respondent was on offer, he would receive a notification through Shiftcare and if he did not want to accept it, he would have to "press decline." He said that Ms Greaves would be notified as a result of him having done so. Ms Greaves disputed that Mr Shrestha was declining shifts in this manner. She asserted that she had to telephone Mr Shrestha to find out why he was not working for her.

• [9] Mr Shrestha confirmed that he engaged in dialogue with Ms Greaves after 27 June 2024 that touched upon the work he was doing with Onside. He denies ever telling her that he did not want to work for her and claimed instead that he wanted to be offered casual shifts with the Respondent but no offers were forthcoming. Mr Shrestha conceded, however, that he did not raise the absence of any offers of shifts with Ms Greaves.[6] This was consistent with the evidence of Ms Greaves, who said that Mr Shrestha did not ask for any weekend work and that she did not get the sense from Mr Shrestha that he wanted any work at all.[7]

• [10] Payslips produced to the Commission for the period from 10 June 2024 until 8 September 2024 revealed the following:

• [11] A feature of Mr Shrestha's account was his vagueness.[8] However, Mr Shrestha maintains that at no stage did he say that he would no longer be accepting work with the Respondent, and he relies on the Respondent having taken no steps to terminate his employment during the July/August 2024 period. Ms Greaves said that having found out that Mr Shrestha had obtained the job with Onside, she asked him how it was going and did not get the sense that he wanted any work with the Respondent. Ms Greaves said that Mr Shrestha did not ask for weekend work (which in any event was not available), that he stated that he did not want to perform support work and that he advised her that he only wanted to work from home.[9]

• [12] Mr Shrestha maintains that he neither resigned from his employment nor told Ms Greaves that he did not want to work for the Respondent. Ms Greaves confirmed that Mr Shrestha did not tell her that he had resigned but she said she had assumed Mr Shrestha had resigned because he had taken the full-time job with Onside.

• [13] Both Mr Shrestha and Ms Greaves attested to having had a discussion in which Ms Greaves offered Mr Shrestha the Support Co-ordinator role with a superior remuneration package to that which he had been receiving from Onside. Mr Shrestha gave the following evidence:

"She used to call me and text, stuff like that. She was wanting me back - you know, she wanted me to work as a support coordinator in her organisation. So that's when she gave me another contract."[10]

• [14] Mr Shrestha said he agreed to accept this opportunity and on 10 September 2024, he commenced in the full time, permanent position of Support Co-ordinator on an annual salary of $83,000. This arrangement was confirmed in a letter of employment.[11] Mr Shrestha was thereafter paid on a fortnightly basis and remained in this position until he was notified in writing of his dismissal on 7 July 2025, which dismissal was effective 28 July 2025.

• [15] Having regard to my finding that the Respondent was a "small business employer" when Mr Shrestha was given notice of his dismissal and noting that his annual rate of earnings was less than the high income threshold, Mr Shrestha would have been a "person protected from unfair dismissal" (s.396(b)) if he had completed at least one year of employment with the Respondent as at 7 July 2025.

• [16] The 5-week period between 15 July 2024 and 18 August 2024 referred to in [10] above was not an "unauthorised absence" within the meaning of s.22 of the Act. Nor was it a period of "unpaid leave" or an "unpaid authorised absence." That Mr Shrestha did not ask for any work and did not perform any work for the Respondent as a support worker for at least this 5-week period is consistent with Mr Shrestha having told Ms Greaves that he did not want to perform support work and only wanted to work from home. I consider that Mr Shrestha's period of employment with the Respondent was broken by this 5-week period and as such, his period of service as a casual employee does not count towards his period of employment.

• [17] I have reached this conclusion because the Support Co-ordinator role Mr Shrestha was subsequently appointed into with the Respondent was not in prospect when he ceased working shifts as a casual employee. I consider that having taken the full-time role with Onside as a support co-ordinator, having told Ms Greaves that he only wanted to work from home and did not want to perform support work and having not asked for any work during the 5-week period between 15 July 2024 and 18 August 2024, the proposition that Mr Shrestha thereafter had a reasonable expectation of continuing employment by the Respondent on a regular and systematic basis simply cannot be sustained.

• [18] The consequence of my findings is that at the time Mr Shrestha was given notice of his dismissal on 7 July 2025, his period of employment with the Respondent only covered the period from his commencement in the position of support co-ordinator on 10 September 2024. This period of approximately 10 months falls short of the one year minimum employment period applicable to him. As such, Mr Shrestha is not a "person protected from unfair dismissal" and there is therefore no jurisdictional basis for him to pursue an unfair dismissal application.

• [19] Section 396(b) of the Act requires the Commission to decide whether Mr Shrestha was a "person protected from unfair dismissal" before considering the merits of his unfair dismissal application. I uphold the Respondent's jurisdictional objection that Mr Shrestha was not a "person protected from unfair dismissal" because I am not satisfied that Mr Shrestha completed a period of employment of at least the minimum employment period at the time when he was given notice of his dismissal. Having upheld this jurisdictional objection, it is not necessary for me to decide whether Mr Shrestha's dismissal was consistent with the Small Business Fair Dismissal Code (s.396(c)). Having determined that Mr Shrestha was not protected from unfair dismissal, his application fails and must therefore be dismissed.

[1] Mr Peter Mihajlovic v Lifeline Macarthur [2024] FWCFB 1070 at [42].

[8] See Transcript PN 390-391, PN 476-485 and PN 500-503.

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