s.394 - Unfair dismissal

• [1] On 6 August 2025, an application was made by Mr Hasan Akgul (Mr Akgul or the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against FNM Painting and Decorating Pty Ltd (the Respondent).

• [2] In the F3 Employer Response Form, the Respondent recorded that it had a jurisdictional objection, namely that the Applicant had not served the minimum employment period as required under section 382(a) of the Act.

• [3] The initial matter to be dealt with in this application is whether the Applicant is a person who is protected from unfair dismissal, having regard to the minimum employment period under the Act. The relevant statutory provisions are sections 382, 383, and 384 of the Act. Those sections, in part, read:

"382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

"383 Meaning of minimum employment period

(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."

(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. ..."

• [4] Mr Akgul was issued an employment contract by the Respondent on 9 July 2024. The employment contract states that Mr Akgul will commence full-time employment with the Respondent "on the approval of the 407 Training Visa (the "Commencement Date") for a term of 18 months" as a Painting Trades Worker.

• [5] The Department of Home Affairs confirmed that the subclass 407 (Training Visa) was granted on 2 May 2025 after being approved on 1 May 2025. Mr Akgul's employment with the Respondent was terminated on 16 July 2025. Mr Akgul was employed for a period of approximately 11 weeks.

• [6] The Respondent submitted that as a small business for the purpose of the Small Business Fair Dismissal Code (SBFDC), the Applicant had not met the minimum employment period, and the application should be dismissed. Mr Akgul submits that his employment commenced in April 2023 as an independent contractor and that this relationship was more consistent with that of an employer / employee arrangement and that this period should be included in the minimum employment period.

• [7] Mr Akgul submitted that his service with the Respondent prior to the granting of his Visa on 1 May 2025, should be considered for the purposes of the minimum employment period. Mr Akgul submitted that he had worked for the Respondent under an independent contractor agreement from April 2023 until his permanent employment as per the contract of employment commenced on 2 May 2025.

• [8] Mr Akgul submitted that from April 2023 until 2 May 2025, the work he completed as an independent contractor was more consistent with that of an employee for the following reasons:
  • The Respondent had direction over the work being performed by Mr Akgul and when the work would be performed.
  • The relationship between the parties was more consistent with that of an employee / employer relationship than that of an independent contractor.
  • The Respondent maintained control over how work would be performed.
  • The Respondent had previously provided correspondence to the Department of Home Affairs confirming that Mr Akgul was a fulltime employee of the Respondent.

• [9] Mr Akgul provided copies of the three different visas he had used during his time with the Respondent. Mr Akgul initially held a subclass 500 (Student Visa) from 27 February 2023. Mr Akgul then transferred to a subclass 408 (Temporary Activity Visa) from 14 July 2023, until his subclass 407 Visa commenced on 2 May 2025.

• [10] Mr Akgul also provided a significant volume of material in relation to the merit of his application as well as other concerns he holds in relation to the conduct of the Respondent (i.e. claims for unpaid superannuation or similar). As this decision deals with the jurisdictional issue in relation to minimum employment period, these submissions are of limited to no value.

• [11] The Respondent submitted that Mr Akgul was only employed by the Respondent between 2 May 2025 and 16 July 2025. The Respondent submitted that Mr Akgul has not met the minimum employment period to make an unfair dismissal application.

• [12] The Respondent submitted that the previous arrangement prior to 2 May 2025, was that of an independent contractor arrangement. The Respondent submitted that the arrangement was consistent with that of an independent contractor for the following reasons:

• Whilst there was no written agreement, the parties understood and agreed that Mr Akgul was an independent contractor at the commencement of the relationship, and it was clear that he commenced his employment as an employee once the subclass 407 Visa was granted.
• That once Mr Akgul's Subclass 407 Visa was granted, he commenced employment as an employee consistent with the previous agreement and understanding.
• The Respondent did not deduct PAYG tax, and Mr Akgul was responsible for all income tax payments.
• The Respondent did not pay superannuation, and Mr Akgul was responsible for his own superannuation payments.
• When work was not available with the Respondent, the Respondent provided Mr Akgul with other jobs leads with other painting businesses that he could complete. The Respondent confirmed that Mr Akgul did not complete this work on behalf of the Respondent.

• [13] The Respondent provided a significant volume of material in relation to the merit of the application and that Mr Akgul was terminated in a manner consistent with the Small Business Fair Dismissal Code (SBFDC). As I have discussed earlier in this decision, the matter I am determining is if Mr Akgul has met the minimum employment period.

• [14] The Full Bench of the Commission, in Chambers and O'Brien v Broadway Homes Pty Ltd,[1] outlined the key propositions to be considered in characterising the nature of such working relationships, derived from the leading authorities, as follows:

(1) When characterising a relationship regulated by a wholly written, comprehensive contract which is not a sham or otherwise ineffective, the question is to be determined solely by reference to the rights and obligations under that contract. It is not permissible to examine or review the performance of the contract or the course of dealings between the parties.

(2) The subsequent conduct of the parties may be considered to ascertain the existence of variation of contractual terms.

(3) The multifactorial approach only has relevance in respect of the required assessment of the terms of the contract.

(4) It is necessary to focus on those aspects of the contractual relationship which bear more directly upon whether the worker's work was so subordinate to the employer's business that it can be seen to have been performed as an employee of that business rather than as part of an independent enterprise. The question is: whether, by the terms of the contract, the worker is contracted to work in the business or enterprise of the purported employer.

(5) Existence of a contractual right to control the activities of the worker (including how, where and when the work is done) is a major signifier of an employment relationship.

(6) The label or characterisation placed on the relationship by the contract is not relevant even as a "tie breaker", or at least it is not determinative." (Footnotes omitted)

• [15] The parties agree that there was no written agreement in place between Mr Akgul and the Respondent that could be described as a contract. As a result, I have considered the nature of the engagement and the conduct of the parties in determining whether Mr Akgul's employment commenced prior to 2 May 2025 as asserted by the Respondent.

• [16] From the limited material that has been provided to the Commission, I observe that the following items weigh in favour of the position that the Applicant was an employee:

• Two letters of reference provided by Mr Metin Sevdim (Managing Director) of the Respondent in support of Mr Akgul's subclass 407 Visa, whereby Mr Sevdim referred to Mr Akgul as working fulltime with the Respondent.
• The duration of the arrangement between the parties and the confirmation that Mr Akgul worked primarily for the Respondent and worked under the direction of the Respondent.
• Mr Akgul not being required to provide formal invoices prior to payment by the Respondent.

• [17] Conversely, I observe that the following items weigh against the position that Mr Akgul was an employee:

• No PAYG tax being deducted by the Respondent.
• No superannuation being paid by the Respondent.
• Mr Akgul being able to complete work for other employers when the Respondent did not have work available for him.
• There being a clear employment contract in place from 9 July 2024, which clearly stated that Mr Akgul would commence employment when his subclass 407 visa was granted.

• [18] Having considered the nature of the engagement between the parties, I have determined that Mr Akgul's engagement with the Respondent prior to 2 May 2025 was that of an independent contractor rather than an employee. My primary reason for this determination is the clear contract of employment entered into between the parties on 9 July 2024, which made it clear that Mr Akgul's employment as an employee would only commence once his Subclass 407 visa had been granted. This written agreement between the parties confirms that prior to the Subclass 407 visa being granted, there was no agreement or intent for the independent contractor arrangement to be that of an employment relationship.

• [19] I note that the parties were in dispute in relation to the ability of Mr Akgul to work for other employers whilst engaged as an independent contractor. Having considered the evidence of the parties before the Commission at the Hearing, I have determined that Mrs Funda Sevdim was the more credible witness in relation to this point. Mr Akgul's responses in relation to how he was paid by the other companies I found to be lacking in authenticity and inconsistent.

• [20] From the evidence provided by Mrs Funda Sevdim, I am satisfied that the Respondent is a Small Business employer for the purposes of the Code. Mr Akgul was therefore required to be employed as an employee for greater than 12 months to be protected under the unfair dismissal provisions of the Act.

• [21] The Act provides that a person is protected from unfair dismissal if, at the time of the dismissal, the person has completed at least a minimum employment period.[2] In the case of employers who are a small business, the minimum employment period is set at twelve months.[3] The twelve month period is a threshold requirement for making this application under section 394 of the Act and there is no discretion under the Act for this to be varied.

• [22] Having found that Respondent is a small business employer, and the Mr Akgul was employed for less than 12 months, I have no alternative but to dismiss the application.

• [23] Even if I have erred and the Respondent is not a small business employer, Mr Akgul's tenure was still less than the 6 months required for a non-small business employer, so I would have no alternative but to dismiss the application.

• [24] An Order to this effect shall be issued today.[4]

[1] [2022] FWCFB 129 at [74].

[2] Fair Work Act 2009 (Cth), s 382(a).

[3] Ibid s 383(b).

[4] PR794754.

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