s.394 - Unfair dismissal

Application for an unfair dismissal remedy - whether minimum employment period completed

• [1] Ms Halima Awwad was employed by Maysan Holdings Pty Ltd from 4 February 2025 until 9 July 2025. On 11 July 2025, Ms Awwad applied to the Commission for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act).

• [2] Section 382 of the Act provides that a person is protected from unfair dismissal if, at the relevant time:

• they have completed at least the minimum employment period; and
• they are either covered by a modern award, employed under an enterprise agreement that applies to them or earn an annual income of less than the "high income threshold".

• [3] A period of employment is defined in section 384 as "the period of continuous service the employee has completed with the employer" at a particular time. A period of service as a casual employee does not count towards the period of employment unless the employment was on a regular and systematic basis, and during the period of service, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.[1] Ms Awwad was employed on a casual basis, but there is no submission that her entire period of service should not be counted for the purpose of determining whether the minimum employment period has been completed. I proceed on the basis that it should.

• [4] Ms Awwad's application form indicates that she commenced employment on 13 January 2025. Maysan Holding's response states 4 February 2025 as the date of commencement of employment. No evidence was filed by Ms Awwad in the proceeding, including on the issue of when her employment with Maysan Holdings commenced. A short submission made reference to the day that she started work, but did not identify the date or provide any supporting information. The only relevant evidence is Ms Awwad's contract of employment, signed on 10 June 2025, and stating her commencement date as 4 February 2025. In the absence of any contradictory evidence, I accept this as an accurate representation of the facts. I find that Ms Awwad's employment with Maysan Holdings commenced on 4 February 2025.

• [5] Similarly unchallenged evidence produced by Maysan Holdings indicates that it has approximately 85 employees. I find that Maysan Holdings is not a small business employer. The relevant minimum employment period required of Ms Awwad was 6 months' continuous service, ending on 3 August 2025.

• [6] There is no dispute that a letter of termination was sent to Ms Awwad on 9 July 2025. The letter advised Ms Awwad that her employment was terminated with immediate effect on that day. It follows that Ms Awwad's period of employment was less than 6 months. Ms Awwad has not completed the minimum employment period as required by section 382 of the Act. She is not a person protected from unfair dismissal in relation to her employment with Maysan Holdings.

[1] Fair Work Act 2009 (Cth), s.384.

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