s.394 - Unfair dismissal

J E Mechanical & Plumbing Services Pty Ltd Trading AS J E Mechanical

[1] Ms Holly Jamieson (Applicant) was employed by J E Mechanical & Plumbing Services Pty Ltd Trading AS J E Mechanical (Respondent) from 27 March 2025. On 19 November 2025 the Applicant advised the Respondent of her resignation effective immediately.

[2] The Applicant has applied to the Commission for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). The application was filed 13 days after the resignation took effect.

[3] Under section 382 of the Act, 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".

Did the Applicant complete the minimum employment period?

[4] The minimum employment period under section 383 of the Act is 6 months, or one year in the case of small business employers (that is, employers of less than 15 employees).

[5] There is no dispute between the parties that the Respondent is a small business and therefore the minimum employment period applicable is 12 months. The Respondent submits that they have 14 employees. The Applicant does not deny that the 12-month employment threshold is applicable and submits that it is unreasonable to expect an individual to remain in a workplace where they are subjected to certain behaviours for 12 months in order to qualify as a protected person. The Applicant does not deny that she resigned from her employment, although she recounts that the resignation was forced due to her treatment by the Director of the Respondent.

[6] It follows that the relevant minimum employment period in the Applicant's case is one year. Her actual period of employment from 27 March 2025 to 19 November 2025 is less than one year.

[7] The Applicant has not completed the minimum employment period as an employee of the Respondent.

Printed by authority of the Commonwealth Government Printer