Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - whether entities associated - minimum employment period not met - in any event, genuine redundancy - application dismissed

• [1] Hsinhan Chen has made an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (FW Act). The respondent named in the application was Alogic Corporation Pty Ltd (Alogic). On 19 September 2025, for reasons given on transcript, I granted Mr Chen's request to amend the name of the respondent to Server Edge Pty Ltd (Server Edge). In short, this was the entity that had dismissed Mr Chen on 13 June 2025, and Alogic was one of two other entities that had employed Mr Chen since 5 February 2024. It was plain that Mr Chen had intended to name the entity that had dismissed him, and that his application was therefore filed within the 21-day limit prescribed by s 394(2).

• [2] A threshold issue arises as to whether Mr Chen has served the minimum employment period that is required in order for him to be a person protected from unfair dismissal. For small business employers, this period is one year, and for other employers it is 6 months (see ss 382 and 384). The parties agreed that from February 2024 to June 2025 Mr Chen worked for three different companies. From 5 February 2024 to 4 August 2024, Mr Chen worked for Alogic. From 5 August 2024 to 9 February 2025, he worked for Seltec Pty Ltd (Seltec). And from 13 February 2025 to 13 June 2025, he worked for Server Edge. Ritesh Kumar, a director of Alogic and Server Edge, submitted two witness statements. In the first, he referred to all three companies as being associated entities. In the second, he sought to correct this. Mr Kumar stated that, while Alogic and Server Edge had the same two directors and shareholders (Mr Kumar and Pratik Kumar), Seltec's sole director and shareholder was Mr Kumar's wife, Priya Sinha. The ASIC company extracts confirm that this was the case. Mr Kumar's evidence was that while there was cooperation between the three companies, and they share office space, Alogic and Sever Edge do not control the operations of Seltec or finance it. Mr Kumar said that Alogic is a computer and IT business, Server Edge is a data infrastructure business, and Seltec is his wife's distribution business. Mr Kumar said that Seltec is one of a number of different distributers used by Alogic and Server Edge, and that Seltec also distributes the products of other businesses.

• [3] Mr Chen said that he believed that the three companies were associated entities. He said Ms Sinha was the human resources director of Alogic, and that it was she who had sent him the offer of employment to work at Alogic and who had handled his visa sponsorship, and that Mr Kumar was copied into much of their correspondence. Mr Kumar said that Ms Sinha was not the human resources director of Alogic and was not employed by Alogic, but that she assisted Alogic with human resources matters.

• [4] I accept Mr Kumar's evidence. It was clear, credible and convincing. I find that Seltec is not an associated entity of Server Edge. These entities are not related bodies corporate, nor are they associated within the meaning of any of the other sub-provisions of s 50AAA of the Corporations Act 2001. In particular, there is no evidence of any qualifying investments, nor is there any evidence that Server Edge controls Seltec, or that Seltec controls Server Edge (see the meaning of control as defined in s 50AA). That Mr Kumar and Ms Sinha are married does not evidence control, nor does the fact that Ms Sinha provides assistance to Alogic on human resources matters. Similarly, the fact that there is close cooperation between the companies is not indicative of control.

• [5] From Mr Chen's working perspective, little changed during his employment with these three companies. Mr Chen said that over his time working for the companies he reported to the same manager, and that Alogic's management team covered all companies. He said that his transfers were administrative adjustments implemented to comply with a six-month employment limitation that applied under his previous 417 working holiday visa, and to prepare a new 482 sponsored visa. But this does not affect the analysis of whether Seltec and Server Edge are associated entities.

• [6] The period of Mr Chen's service with Server Edge was 4 months. Under ss 22(5) and (7) of the FW Act, if an employee transfers to an associated entity within 3 months of the employment with the first employer ending, then the period of service with the first employer counts towards service with the second employer, and the period between the end of the first employment and the start of the second does not break the continuity of employment. But as Seltec is not an associated entity of Server Edge, these provisions do not apply in respect of his employment with that company. Further, Mr Chen's service with Alogic does not count towards his service with Server Edge because the period between the end of his service with Alogic and the start of his employment with Server Edge exceeded 3 months. In conclusion then, Mr Chen had only 4 months' service with Server Edge, which is less than the minimum employment period of 6 months. Server Edge contends that it is a small business employer within the meaning of s 23, and that Mr Chen would need a year's service before he could bring an unfair dismissal claim against it. But even if this is not the case, Mr Chen does not meet the general minimum employment period of 6 months, and was therefore not protected from unfair dismissal. For this reason, the application must be dismissed.

• [7] In any event, I consider that this was a case of genuine redundancy within the meaning of s 389 of the FW Act. The provision states:

"(1) A person's dismissal was a case of genuine redundancy if:

(a) the person's employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person's dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(b) the enterprise of an associated entity of the employer."

• [8] As to the requirement in s 389(1)(a), I find that Server Edge no longer required Mr Chen's job to be performed by anyone because of changes in the operational requirements of its enterprise. I accept the evidence of Mr Kumar that on 28 May 2025 he conducted a review of the business operations of Server Edge to ascertain whether it still needed an industrial graphic designer to prepare artwork for products, and that he concluded that Server Edge had no new products planned for launch which would require such work. At the time of his dismissal, Mr Chen was the only designer working for Seltec. It no longer needed one. Mr Chen said that he was also performing work for the benefit of Alogic at this time, and that he remained involved in Alogic-branded projects. But Mr Kumar said that while Alogic still employed designers, it too had a reduced demand for design work; when Mr Chen worked for Alogic there had been six designers, and since then there had been five. The decline in demand had particularly affected the type of projects on which Mr Chen had worked. I accept this evidence. I find that Server Edge no longer wanted Mr Chen's job to be done by anyone because of its changed operational requirements, which were that there was insufficient work for him in his current position and therefore the company no longer wanted that position.

• [9] Mr Chen said that another reason to doubt that his employment was terminated for reason of redundancy was that during the discussion when his manager and Mr Kumar had dismissed him, he was told that the reason for the dismissal was his lack of ability. Mr Kumar agreed that the question of Mr Chen's performance was raised but said that it was made very clear to Mr Chen that he was being made redundant. I accept Mr Kumar's evidence about this. I note that in a message to Mr Kumar on 19 June 2025, Mr Chen told Mr Kumar that he expected to receive redundancy payments. It is clear that from this that Mr Chen's own understanding was that his position had been made redundant.

• [10] Mr Chen said that he believed that the real reason for his dismissal was that some days earlier he had asked management to ensure that his employment records were 'aligned' with Alogic, the company that had sponsored his visa application, and that Server Edge had taken adverse action against him for raising this matter. Mr Kumar denied this and said that he had always supported Mr Chen's visa arrangements. I believe him. It is clear that the reason for the dismissal was the redundancy of Mr Chen's position.

• [11] I find that the element of 'genuine redundancy' in s 389(1)(a) is met. Server Edge no longer required Mr Chen's job to be performed by anyone because of changes in the operational requirements of its enterprise.

• [12] As to the requirement in s 389(1)(b), Mr Chen did not claim that he was covered by an award or enterprise agreement. No party made any reference to the application of an industrial instrument and Mr Chen's payslips referred to him as award-free. I have considered for myself whether Mr Chen might have been covered by the Graphic Arts, Printing and Publishing Award 2020 (Award), but do not consider that this was the case, because Server Edge is a business that is a distributor of information technology and data infrastructure, not an employer in the industry of the Award (see clause 4.2). I do not consider that Server Edge had any award obligations to consult with Mr Chen about his redundancy.

• [13] As to s 389(2), Mr Chen said that he could have transitioned into positions such as product manager, production manager, graphic designer, or industrial designer for Alogic, and that the company made no effort at all to redeploy him. But Mr Kumar said, and I accept, that these positions were occupied by other employees, and that the only available roles were sales-related, for which Mr Chen did not have the required skills. Section 389(2) requires the Commission to determine whether, based on the evidence, it would have been reasonable for the person to be redeployed within its enterprise or that of an associated entity. Based on the evidence before me in this matter, I am not satisfied that this was the case. There is no evidence of any other available position or work that Mr Chen could reasonably have undertaken. Each of the requirements of s 389 is met. The dismissal was a case of genuine redundancy and was therefore not unfair.

• [14] Mr Chen did not serve the minimum employment period. He was therefore not a person protected from unfair dismissal. In any event, the dismissal was a case of genuine redundancy as defined in s 389, and he was therefore not unfairly dismissed (see s 385(d). Mr Chen's application is dismissed.

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