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[2020] FWC 4396
respondent. Applicant's unfair dismissal application dismissed for lack of jurisdiction because the respondent was a small business employer (fewer than 15 employees) and the applicant had not completed the...
Mr Rivera worked for Geora from 20 May 2019 and was given notice of termination on 30 January 2020. He applied to the Fair Work Commission for an unfair dismissal remedy. Geora argued the Commission had no jurisdiction because it was a small business (fewer than 15 employees) and Mr Rivera had not completed the one‑year minimum employment period. Mr Rivera argued Geora was associated with AgriDigital so that employees of both should be counted, which would take Geora beyond the 15‑employee threshold. The Commission examined the evidence and found Geora and AgriDigital were independent: they were not related bodies corporate, there was no control or qualifying investment with material influence, and a loan and a common non‑executive director did not establish association. Because Geora was a small business and Mr Rivera had not completed one year of service, he was not protected from unfair dismissal and the Commission dismissed his application (see [20]–[22]).
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1 cited instrument linked from this judgment.
1,792 words · generated 23/06/2026
Bernardo Rivera commenced employment with Geora Ltd T/A Geora on 20 May 2019. He was given notice of termination for poor performance on 30 January 2020 and his employment ended on 27 February 2020 (7–(d)). On 20 February 2020 Mr Rivera lodged an unfair dismissal application in the Fair Work Commission (Form F2), naming multiple related entities including Geora and AgriDigital ([1]). Geora responded (Form F4) asserting it was the employer and raising two jurisdictional objections: (1) that Rivera was not “dismissed” within s.386; and (2) more importantly for the outcome, that Rivera had not completed the minimum employment period because Geora was a small business employer (or alternatively employees of associated entities should be counted) ([2], [3]).
The Commission held a telephone hearing on 19 May 2020. The Commission permitted legal assistance, noting that jurisdictional questions are inherently complex and s.596 permits representation ([4]). Evidence included witness statements from Geora’s CEO Ms Ohlsson and from Ms Emma Weston (a non‑executive director of Geora and CEO of AgriDigital), and a single undated witness statement from the applicant that the Commission found unhelpful and speculative ([17], [18], [19]). Geora tendered documents and evidence about corporate structure, operations, governance and a loan of $356,000 from AgriDigital to Geora to fund technology development (18, (g)).
The central contested factual and legal question was whether AgriDigital and Geora were “associated entities” for the purpose of counting employees under s.23(3) of the Fair Work Act. If they were associated, their employees would be aggregated for the 15‑employee threshold and Geora might not be a small business; if not, Geora was a small business and the one‑year minimum employment period applied under s.383. The Commission found that the statutory tests in s.50AAA Corporations Act were not met: the entities were not related bodies corporate; neither controlled the other; no qualifying investment giving significant influence or material interest was established; and a common non‑executive director and the repayable loan did not amount to control or material influence ([20]). The Commission concluded Geora was a small business and Mr Rivera had not completed the one‑year minimum employment period; accordingly the Commission lacked jurisdiction and dismissed the unfair dismissal application ([21]–[22]).
The decision turns on statutory interpretation and evidentiary application of two linked statutory schemes.
Statutory framework: The Fair Work Act protects employees who have completed the “minimum employment period” (s.382, s.383). The period is one year if the employer is a “small business employer” (s.383(b)). Section 23(1) defines a small business employer as a national system employer that employs fewer than 15 employees at a particular time, and s.23(3) requires that, for counting employees, associated entities are taken to be one entity. The meaning of “associated entity” is imported from s.50AAA of the Corporations Act (the Commission set out both regimes at [9]–[14]).
Application to the facts: The applicant’s core contention was that Geora and AgriDigital were associated, so employees of AgriDigital should be aggregated with those of Geora, pushing Geora above the 15‑employee threshold. The Commission analysed the s.50AAA tests: related bodies corporate, control (s.50AA), control of principal by associate, qualifying investment with significant influence and materiality, or common controller with materiality ([12]–[14]). The evidence led to findings that the companies operated separately (management, operations, finances), that Ms Weston’s role as a non‑executive director did not give AgriDigital capacity to control Geora, and that the loan agreement did not confer the capacity to influence financial or operational policies ([18], [20]).
Evidentiary posture: The applicant produced no probative evidence on association and did not cross‑examine the respondent's witnesses. The Commission therefore had no reason to doubt the respondent’s evidence and made findings of independence between the entities ([19], [20]). Because the statutory tests for association were not satisfied, employees were not aggregated; Geora was therefore a small business employer; the one‑year minimum employment period applied; and the applicant had not completed one year at the time of dismissal. That lack of minimum service deprived the Commission of jurisdiction and mandated dismissal of the application ([21]–[22]).
In short, statutory tests were applied to the factual record; the record did not support aggregated counting of employees; the minimum‑period bar therefore applied and ended the matter.
Before this decision, the legal framework was already established: Fair Work Act s.23 requires aggregation of associated entities; s.50AAA of the Corporations Act sets the tests for association; s.383 prescribes the minimum employment period with a higher threshold for small business employers. The decision applies those legislative tests to its facts and aligns with prior Fair Work Commission authorities that examine the factual question of control, qualifying investment and materiality when deciding association (the judgment cites prior decisions where control had been established at [20] fn 4).
After this decision, there is no change in the statutory law. The decision is a straightforward application of s.50AAA tests to deny association where governance, operations and finance are demonstrably separate, and cautioning that common directors or loans, without more, do not automatically create association. It reinforces that the Commission will look to capacity to influence financial and operating policies (the control test) and materiality of operations, resources or affairs in deciding association for s.23 purposes.
"[If] the Respondent is held to be a small business employer, the Applicant would not have completed the minimum employment period and would therefore not qualify to make any application for an unfair dismissal remedy." ([3])
Plain English: If Geora is treated as a small business, the law requires employees to serve one year before being eligible to bring an unfair dismissal claim; Mr Rivera had not done so.
"The Respondent and AgriDigital are not related bodies corporate." (20)
Plain English: Geora and AgriDigital are not within the same corporate group in the way the Corporations Act describes.
"The Respondent is not controlled by AgriDigital. Both entities are financially and operationally independent." (20)
Plain English: AgriDigital does not have the power to make or force decisions about Geora's business or finances.
"AgriDigital does not have the capacity to determine financial and/or operational policies or outcomes within the Respondent." (20)
Plain English: The loan and any shared director did not give AgriDigital the ability to call the shots at Geora.
"The Respondent is a Small Business within the meaning of the Act. The Applicant had not completed 12 months of service with the Respondent before he was dismissed." ([22])
Plain English: Geora employed fewer than 15 people and Mr Rivera had not worked there for a year, so he was not entitled to bring an unfair dismissal claim.
This decision is directly relevant where an employee sues for unfair dismissal but the employer contends it is a small business, and the employee alleges association with a larger entity to aggregate headcount. Key fact patterns where this reasoning will apply:
A new or small company (e.g., company limited by guarantee, membership model) with some formal connection to a larger operating company (common director, shared personnel history) seeks to be treated separately for employee counting, and the other party seeks aggregation: this decision shows that separation of operations, independent decision‑making, and absence of capacity to influence are decisive ([18], [20]).
Situations where a loan or commercial transaction exists between entities: a repayable loan with interest, negotiated at arm's length, is insufficient by itself to create an associated entity relationship unless the loan confers control or material influence (18, 20).
Instances where a director serves in a non‑executive capacity across related organisations: the mere fact of a common non‑executive director will not, alone, establish control or association; the capacity to influence financial and operating policies must be shown (18, 20).
Practitioners should concentrate on evidence showing capacity to influence financial and operational policy, actual appointment powers, materiality of interests, and whether operations/resources/affairs are material to a putative common controller.
This decision is a first-instance Commission decision applying established statutory tests; the judgment itself cites several prior Commission decisions where 'control' was found ([20] fn 4). Because the decision is a fact‑specific application of s.50AAA and s.23, subsequent tribunals or courts deciding association questions will look to the same statutory criteria and evidence types: corporate governance arrangements, contractual rights, board composition in practice, financing arrangements with control features, the practical capacity to influence policies, and materiality. The decision will be a useful, though non‑binding, example for practitioners and tribunals where the contested facts are similar: separate management, arm's length loan, non‑executive common director.
Users should search for later decisions that distinguish or follow this one where the facts differ, especially cases where a loan incorporated governance covenants, security, or director appointment rights. The judgment itself points to prior examples where control was established, signalling that the Commission assesses a multi‑factor factual matrix rather than applying any single decisive fact.
Materiality thresholds: While the Commission held that AgriDigital's loan and involvement were not material to AgriDigital in the relevant sense (20), the judgment does not quantify what degree of financial interest or influence would be 'material'. Practitioners will still need to litigate what level of investment or influence amounts to materiality under s.50AAA(4)–(8).
Non‑executive directors and practical influence: The judgment emphasises that a non‑executive director who does not take part in day‑to‑day operations (and is not paid by the entity) does not equate to control (18, (e), 20). However, in closer cases where a non‑executive director participates frequently, or where board voting is tightly balanced, further factual enquiry will be necessary to determine whether such a director supplies the requisite capacity to influence.
Loan covenants and conditionalities: A simple arm's‑length loan was insufficient here; but where financing arrangements include governance covenants, security interests or appointment rights, different conclusions may follow. The line between commercial finance and control remains a fact‑intensive boundary to be litigated.
Aggregation where a third‑party 'births' a company: The Commission described Geora as being 'birthed' by AgriDigital but found that history insufficient for association ([21]). How much ongoing involvement from an originating entity is necessary to establish association remains case dependent.
Interaction between procedural representation decisions and evidentiary outcomes: the Commission granted representation under s.596 given jurisdictional complexity ([4]). The trial management choices (e.g., applicant not cross‑examining) materially affected findings. Future applicants must weigh procedural decisions that can influence factual findings on association.
Overall, this decision reinforces that s.50AAA is strictly applied: association requires evidence of the statutory tests in operation, and common directorship, historical origins or commercial transactions, without more, will not suffice to aggregate employees for s.23 purposes.
The attached document replaces the document previously issued with the above code on 9 November 2020.
1. All references to "Ms Emma Watson" are changed to "Ms Emma Weston".
2. All references to "Ms Watson" are changed to "Ms Weston".
s.394 - Unfair dismissal
Application for an unfair dismissal remedy - minimum period of employment - whether employer was a small business - whether employer was an associated entity of another for the purposes of calculating number of employees - where one entity is found to not be an associated entity of another - where employer found to be a small business - application dismissed.
[1] On 20 February 2020, Mr Bernardo Rivera (Applicant) filed a Form F2 with the Fair Work Commission (Commission), being an application for an unfair dismissal remedy (Application). By way of his Application, the Applicant claims that:
(a) he was dismissed from his employment with A.C.N. 630 167 618 Ltd; Full Profile Pty Ltd; AgriDigital; Geora (which the Applicant asserts are all "related entities" entities under the Corporations Act 2001 (Corporations Act));
(b) his dismissal took effect on on 30 January 2020; and
(c) his dismissal was "unfair" within the meaning of Part 3-2 of the Fair Work Act 2009 (Act).
[2] On 3 March 2020, Geora Ltd T/A Geora (Respondent or Geora) filed a Form F4 with the Commission (Response). By way of that Response, the Respondent claims that:
(a) the Respondent was actually the Applicant's employer; and
(b) the Respondent sought to raise two jurisdictional objections to the Application:
i. the Applicant was not "dismissed" within the meaning of s.386 of the Act (Dismissal Objection); and/or in the alternative
ii. the Applicant did not meet the "minimum employment period" within the meaning of s.383 of the Act (Minimum Employment Period Objection).
[3] Despite raising two jurisdictional objections, only the Minimum Employment Period Objection really needs to be determined in the first instance. Indeed, if the Respondent is held to be a small business employer, the Applicant would not have completed the minimum employment period and would therefore not qualify to make any application for an unfair dismissal remedy. If that is the case, then the Dismissal Objection is of no event.
[5] I granted leave for the Application to be amended to change the name of the Respondent to the Application from "A.C.N. 630 167 618 Ltd; Full Profile Pty Ltd; AgriDigital; Geora" to "Geora Ltd T/A Geora".
[6] Having considered the evidence and submissions of the parties, I have determined that the Commission does not have jurisdiction to consider and determine the Application. My reasons for this decision follow.
[7] The following facts are not in contest:
(a) On 20 May 2019, the Applicant commenced employment with the Respondent.
(b) On 30 January 2020, the Applicant was given notice of termination for the reason of poor performance.
(c) In accordance with the Applicant's "Employment Agreement" with the Respondent dated 20 May 2019, the Applicant was directed to take "garden[ing] leave" during the four weeks' notice period.
(d) On 27 February 2020, the Applicant's employment ended with the Respondent (Termination Date).
[8] However, the following facts are in contest:
(a) As to the number of persons employed by the Respondent as at the Termination Date:
(i) the Respondent says it only employed six employees; and
(ii) the Applicant says that the Respondent employed more than 15 persons, as the Respondent was an "associated entity" of AgriDigital.
Relevant Law - Minimum Employment Period Objection
[9] As per s.382(a) of the Act, a person is protected from unfair dismissal at the time of dismissal if, at that time, the person is an employee who has completed a period of employment with his or her employer of at least the "minimum employment period".
[10] Section 383 of the Act defines "minimum employment period" 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;
(b) if the employer is a small business employer--one year ending at that time".
[11] Relevantly, s.23 of the Act defines a "small business employer" as follows:
(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.
(2) For the purpose of calculating the number of employees employed by the employer at a particular time:
(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and
(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.
(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.
(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee's employment, the employees that are to be counted include (subject to paragraph (2)(b)):
(a) the employee who is being dismissed or whose employment is being terminated; and
(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated".
(1) One entity (the associate) is an associated entity of another entity (the principal) if subsection (2), (3), (4), (5), (6) or (7) is satisfied.
(2) This subsection is satisfied if the associate and the principal are related bodies corporate.
(3) This subsection is satisfied if the principal controls the associate.
(b) the operations, resources or affairs of the principal are material to the associate.
(a) the associate has a qualifying investment (see subsection (8)) in the principal; and
(b) the associate has significant influence over the principal; and
(a) the principal has a qualifying investment (see subsection (8)) in the associate; and
(b) the principal has significant influence over the associate; and
(a) an entity (the third entity) controls both the principal and the associate; and
(b) the operations, resources or affairs of the principal and the associate are both material to the third entity.
(8) For the purposes of this section, one entity (the first entity) has a qualifying investment in another entity (the second entity) if the first entity:
(a) has an asset that is an investment in the second entity; or
(b) has an asset that is the beneficial interest in an investment in the second entity and has control over that asset".
[13] For the purposes of an "associated entity", ss.12 and 64 of the Corporations Act relevantly define an "entity" as a natural person, a body corporate (other than an exempt public authority), a partnership or a trust, and in the case of a trust, a reference to the trustee of the trust.
[14] "Control" is defined in s.50AA of the Corporations Act as when one entity has the capacity to influence decisions about the financial and operating policies of the second entity.
Issues to be determined - Minimum Employment Period Objection
[15] The Respondent cannot be taken to be a "small business employer" if the number of employees engaged by AgriDigital are required to be accounted for.
[16] The Respondent submits that AgriDigital and the Respondent are not "associated entities" within the meaning of the Corporations Act, as none of subs-ss.(2), (3), (4), (5), (6) or (7) in s.50AAA of the Corporations Act are satisfied.
[17] In support of that position, the Respondent tendered the following witness statements:
(a) Witness Statement of Ms Ohlsson dated 4 May 2020;
(b) Witness Statement of Ms Emma Weston (Non-Executive Director of the Respondent) dated 4 May 2020;
(c) Second Witness Statement Ms Ohlsson dated 25 May 2020; and
(d) Second Witness Statement Ms Weston dated 25 May 2020.
[18] While the Respondent's witness statements describe an idiosyncratic corporate relationship between AgriDigital and the Respondent (with industry-specific jargon often left undefined, unexplained, and otherwise being of little assistance), I nonetheless draw the following relevant facts from the evidence:
(a) Ms Ohlsson is an Executive Director and Chief Executive Officer of the Respondent. Prior to being engaged by the Respondent, Ms Ohlsson was employed by AgriDigital in various roles. In her capacity as CEO for the Respondent, Ms Ohlsson has responsibility for managing Geora's strategic initiatives, business plan, budget, providing support to the Board of Directors, and leading all business operations (including finance and administration, human resources, legal, risk and compliance).
(b) Ms Weston is a Non-Executive Director of the Respondent, and the current Chief Executive Officer of AgriDigital. In her capacity as a Non-Executive Director of the Respondent, Ms Weston undertakes a variety of activities that might best be described as being consistent with her statutory duties as a director. In the performance of those duties, Ms Weston says that she is not subject to any direction from AgriDigital (and there is no capacity for AgriDigital to do so).
(c) The Respondent was incorporated in or around November 2018. At that time, the Board of AgriDigital decided to "open source" the blockchain technology it had developed for the benefit of the agricultural industry, and to encourage the trial and eventual adoption of blockchain solutions by industry participants, as well as to extend the reach of the technology beyond the "grains industry" so that other commodities and industries could gain access to the technology. It was decided to establish a company limited by guarantee to which AgriDigital's blockchain intellectual property would be transferred. That company was the Respondent. The Respondent has a membership-based model and there are no shareholders. The Respondent was established as an independent technology platform in order to benefit the entire agricultural industry. Through the corporate structure of being a company limited by guarantee, it aims to provide the technology to facilitate this collaboration, which includes open dialogues and projects with a number of other start-up business including, inter alia, AgriDigital.
(d) The management and operations of the Respondent and AgriDigital are separate. The technology developed by the Respondent and by AgriDigital are separate technologies. Ms Ohlsson is responsible for the employment policies, operational policies, accounting, industry memberships, customer relations, sales processes, revenue models, engagement with lawyers and accountants, and all other general operational and financial policies of the Respondent. AgriDigital has no involvement in these decisions. Ms Ohlsson does not receive instruction from AgriDigital or any of its employees as to the financial or operational policies of the Respondent.
(e) Ms Weston does not have an operational role in the Respondent. Ms Weston has never been employed or otherwise paid by the Respondent. In her role as Director, Ms Weston assists with setting the strategic direction of the Respondent and providing market insights in her personal capacity as a so-called "industry leader". The Respondent's team leverages Ms Weston's network to access potential customers, industry partners, speaking and pitching opportunities. Ms Weston does not have the ability to control the operations or finances of Geora.
(f) The decision to approach Ms Weston was made by Ms Ohlsson and Mr George Samman (Director of the Respondent), and was not made because of any formal or informal connection between the Respondent and AgriDigital. The Respondent is under no obligation to appoint Ms Weston or any other person nominated by AgriDigital to the Board of the Respondent.
(g) On or around 18 December 2019, the Respondent took a loan from AgriDigital for a total amount of $356,000 for the purpose of building technology (Loan). The Loan does not provide AgriDigital with any control over the operation or finances of the Respondent. The loan is repayable in full plus five percent interest. The Loan Agreement was negotiated by Ms Ohlsson on behalf of the Respondent, and their appointed lawyers from Gilbert + Tobin, and AgriDigital and their appointed lawyers of King & Wood Mallesons.
[19] The Applicant filed one witness statement, being his own statement, which is undated. However, the Applicant provides no relevant evidence that goes to the question as to whether the Respondent is an associated entity of AgriDigital. Instead, the Applicant's evidence consists of speculation, statements of opinion, or bare assertions - the thrust of which tends more toward submissions than evidence. The Applicant's evidence is most unhelpful in this regard, and it does not bear repeating. Finally, I note that the Applicant forwent the opportunity to cross-examine the Respondent's witnesses. On that basis, I have no reason to doubt the gravamen of the Respondent's evidence.
[20] Having considered the parties' evidence and submissions, I make the following findings:
(a) The Respondent and AgriDigital are not related bodies corporate.
(b) The Respondent is not controlled by AgriDigital. Both entities are financially and operationally independent. AgriDigital does not have the capacity to determine financial and/or operational policies or outcomes within the Respondent. AgriDigital does not have the capacity to appoint someone to the role of Director within the Respondent. The financial and operational systems of both the Respondent and AgriDigital are entirely separate. That Ms Weston is a common Director of both the Respondent and AgriDigital is not to the point. Ms Weston does not exercise any requisite control over the Respondent. Further, Ms Weston's capacity to influence the Respondent is tempered by the fact that there are other Directors on the Board of the Respondent, as well as the fact that Ms Weston acts in a Non-Executive capacity. These circumstances are distinct from cases where "control" has been established.[4]
(c) AgriDigital is not controlled by the Respondent.
(d) The Respondent does not have a qualifying investment in AgriDigital.
(e) AgriDigital does not have a qualifying investment in the Respondent, or significant influence over the Respondent that is material to AgriDigital. The Loan does not require or permit any financial or operational influence or control by AgriDigital over the Respondent's business.
(f) As already stated, Ms Weston, as a third party, does not control the Respondent. As already established, Ms Weston does not have the ability to control the operations or finances of the Respondent.
[21] The Respondent and AgriDigital are at arm's length from one another. The latter birthed the former, with a vision that the Respondent might operate and develop technology in a niche industry. The question is whether AgriDigital and the Respondent are "associated entities" within the statutory definition. For reasons provided above, the answer to that question, on the evidence before me, must be no.
[22] The Respondent is a Small Business within the meaning of the Act. The Applicant had not completed 12 months of service with the Respondent before he was dismissed (even assuming, but for the Dismissal Objection, he was so "dismissed"). The Applicant is therefore, even on his best case, not a person protected from unfair dismissal (under Part 3-2 of the Act). The Respondent's Minimum Employment Period Objection is therefore upheld. Accordingly, the Applicant's application for an unfair dismissal remedy must be dismissed. An order to that effect will be published in due course.
Ms Amanda Both (Unfair Dismissals Direct) appeared for the Applicant.
Ms Bridie Ohlsson (Chief Executive Officer of the Respondent) appeared for the Respondent.
Printed by authority of the Commonwealth Government Printer
Bernardo Rivera
Geora Ltd T/A Geora [2020] FWC 4396
Applicant's unfair dismissal application dismissed for lack of jurisdiction because the respondent was a small business employer (fewer than 15 employees) and the applicant had not completed the one‑year minimum employment period; the respondent and AgriDigital were found not to be associated entities (see [20], [22]).