s.394 - Unfair dismissal

Application for an unfair dismissal remedy - minimum employment period - whether transfer of employment - associated entities - transfer of business - transfer of assets - continuity of service - jurisdictional objection dismissed

• [1] On 20 August 2025, Mr James Hinton applied for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Cth) (the Act) in relation to his employment as an interstate truck driver for Grae Bay Pty Ltd (Grae Bay). It is not in dispute that at the time of dismissal, Mr Hinton was employed by Grae Bay. I have proceeded on this basis.

• [2] A person is protected from unfair dismissal if they have completed at least the minimum employment period.[1] The "minimum employment period" for an employer other than a small business employer is 6 months.[2] Grae Bay is not a small business employer.

• [3] Grae Bay says Mr Hinton is not protected from unfair dismissal because he did not complete the minimum employment period. It says Mr Hinton was employed from 9 March 2025 to 1 August 2025 and that prior periods of employment from 29 April 2024 with other entities (during which Mr Hinton performed the same work, in the same truck) were separate and distinct from the employment with Grae Bay and do not count toward his period of service with Grae Bay.

• [4] Mr Hinton says his period of service from 29 April 2024 to 1 August 2025 should be treated as one continuous period of service, including for the purpose of the minimum employment period. I agree.

• [5] At a hearing on 8 December 2025, I dismissed the jurisdictional objection. Mr Hinton has completed the minimum employment period and is protected from unfair dismissal. Directions will issue shortly for the further programming of the matter.

• [6] An employee's period of employment with an employer at a particular time is the period of continuous service they have completed as an employee with their employer at that time.[3] Where there is a transfer of employment, a period of service with a different employer can also count as service with the later employer (ss.22(5) and (7) of the Act).

• [7] Section 22 of the Act deals with the meanings of 'service' and 'continuous service'. A period of service is a period during which a national system employee is employed by their national system employer. Under s.22(5), a period of service can be continuous service where there is a transfer of business:

"(5) If there is a transfer of employment (see subsection (7)) in relation to a national system employee:

(a) any period of service of the employee with the first employer counts as service of the employee with the second employer; and

(b) the period between the termination of the employment with the first employer and the start of the employment with the second employer does not break the employee's continuous service with the second employer (taking account of the effect of paragraph (a)), but does not count towards the length of the employee's continuous service with the second employer.

Note: This subsection does not apply to a transfer of employment between non - associated entities, for the purpose of Division 6 of Part 2 - 2 (which deals with annual leave) or Subdivision B of Division 11 of Part 2 - 2 (which deals with redundancy pay), if the second employer decides not to recognise the employee's service with the first employer for the purpose of that Division or Subdivision (see subsections 91(1) and 122(1))."

• [8] Section 22(7) defines 'transfer of employment':

"(7) There is a transfer of employment of a national system employee from one national system employer (the first employer) to another national system employer (the second employer) if:

(a) the following conditions are satisfied:

(i) the employee becomes employed by the second employer not more than 3 months after the termination of the employee's employment with the first employer;

(ii) the first employer and the second employer are associated entities when the employee becomes employed by the second employer; or

(b) the following conditions are satisfied:

(i) the employee is a transferring employee in relation to a transfer of business from the first employer to the second employer;

(ii) the first employer and the second employer are not associated entities when the employee becomes employed by the second employer.

Note: Paragraph (a) applies whether or not there is a transfer of business from the first employer to the second employer."

• [9] The term 'associated entity' has the meaning given to it by section 50AAA of the Corporations Act 2001 (Cth) (Corporations Act). That includes the concept of 'control' in section 50AA of the Corporations Act, which means having the "capacity to determine the outcome of decisions about the second entity's financial and operating policies". 'Capacity' is determined by reference to the practical influence one can exert over the other, taking into account any practice or pattern of behaviour affecting the financial or operating policies of the entity said to be under control. It is not enough to hold joint control over an entity. It is also not sufficient if the capacity to influence decisions arises in the context of a legal obligation to act beneficially for someone other than one's own shareholders.

• [10] Two businesses will be associated entities if:
  1. They are related bodies corporate (for example, one is a holding or subsidiary company of the other entity, or they are two subsidiaries of the same holding company),
  2. One business controls the other, including where the operations, resources or affairs of one are material to the other,
  3. One has a significant influence over the other, as well as a material qualifying investment in the other, either in the form of an asset or control over a beneficial interest in the investment, or
  4. A third entity controls the two businesses, where the operations, resources, or affairs of those entities are both material to the third entity.

• [11] The facts are these. Mr Hinton was originally employed in April 2024 when he responded to an advertisement for work for Beach Blue Pty Ltd (Beach Blue); spoke with a man called Mr Stuart Devine (described as 'Operations Manager'); and was asked by Mr Devine to meet with Mr Nick Viropolous, described to Mr Hinton as the "owner of the business". After a meeting with Mr Viropolous, Mr Hinton was introduced to Mr Vitankumar Bhavsar (Compliance Manager); inducted into basic fatigue management compliance as an 'employee' of FCD Holdings Pty Ltd (FCD Holdings); and given the job of truck driver, performing two interstate routes each week while driving an Iveco S Way B-Double truck with the registration number XW27IT. Mr Hinton performed this role (with minor variations) throughout the period from 29 April 2024 to 1 August 2025.

• [12] Over this period, Mr Hinton was paid by a series of entities starting with Beach Blue Pty Ltd and later Legend Society Pty Ltd (Legend Society), Eagle Bright Pty Ltd (Eagle Bright) (now in administration), Mr Viropolous, 'Nicks Food', 'Nicks Legend', 'Nicks Eagle', and Grae Bay. I infer that Nicks Legend is a reference to Legend Society, and that 'Nicks Eagle' is a reference to Eagle Bright. Mr Hinton was never given any written contract of employment or letter of transfer between entities. There were text messages with Mr Devine when Mr Hinton had queries about his employment, and with Mr Viropolous when he needed approval to take leave. The only formal correspondence issued to Mr Hinton in relation to his employment was a letter of termination expressed as being from the Director of Grae Bay.

• [13] Mr Viropolous is the Director of Nicks Food Pty Ltd (Nicks Food), a dairy products storage and delivery business. Nicks Food operates out of premises at 28 Norman St, Peakhurst (28 Norman St). Also operating out of those premises is FCD Holdings, which appears to be a related entity of Nicks Food and owns the truck driven by Mr Hinton. It also holds the National Heavy Vehicle Regulator (NHVR) accreditation for vehicles based at 28 Norman St. Grae Bay has a contract with Nicks Food to provide labour (truck drivers) to undertake deliveries from 28 Norman St in trucks owned by FCD Holdings. The contract was previously held by Eagle Bright until Grae Bay 'took over the contract' in March 2025.

• [14] The Director and Secretary of Eagle Bright is Mr George Passalis. According to Mr Hinton, Mr Passalis was a forklift driver at 28 Norman St and his wife, 'Diane', administered the pay for Eagle Bright and before that, Beach Blue. The Director and Secretary of Grae Bay is Mr Scott Lawson Langby. He is known to Mr Hinton as a night shift manager at 28 Norman St. Mr Langby says he was a truck driver for 'Skatagis' before he became the director of Grae Bay. The Commission's records indicate that Skatagis Co Pty Ltd is another entity connected to Nicks Food and Mr Viropolous, and to a person with the name Dianne.

• [15] The case proceeded on the basis that Mr Hinton was employed by Eagle Bright for a period that exceeded 1 month, and became employed by Grae Bay less than 3 months after termination of his employment with Eagle Bright. Accordingly, Mr Hinton will have completed the minimum employment period if his period of service with Eagle Bright counts as service with Grae Bay. This depends on whether there was a transfer of employment between the two entities. I find that there was a transfer of employment in relation to Mr Hinton, both by reason of there being associated entities for the purposes of s.22(7)(a) and because of a transfer of business (s.22(7)(b)).

Transfer of employment between associated entities (s.22(7)(a))

• [16] Eagle Bright and Grae Bay were, in my view, associated entities for the purposes of s.50AAA at the time Mr Hinton became employed by Grae Bay. They were each under the effective control of Mr Viropolous, and their operations were material to him as the means by which dairy products were able to be transported from the premises at 28 Norman St to customers for the benefit of his business, Nicks Food.

• [17] I also consider Eagle Bright and Grae Bay to have been associated entities of Nicks Food. In practice, they were under its control (by Mr Viropolous as owner, as well as Operations Manager, Mr Devine, who appears to work for Mr Viropolous and to have had complete autonomy to manage the business of Grae Bay). Grae Bay's administration (payroll, accounting, recruitment and human resources) was undertaken by the same 'in house' offices and by persons common to the various businesses named above, working directly or indirectly for Mr Viropolous. When Mr Hinton asked Mr Devine about the different entities on his payslips, Mr Devine responded 'if you need a letter explaining the 4 different company's penny said to give her a call or ask nick and they will give you 1'. 'Nick' is a reference to Mr Viropolous. Mr Hinton also says that Mr Viropolous approved and denied personal leave or holiday forms. Although the evidence is more limited, it seems that the same position applied in relation to Eagle Bright.

Transfer of employment in relation to a transfer of business (s.22(7)(b))

• [18] Section 311 of the Act deals with transfer of business. A transfer of business occurs if:

1. The employment of an employee of the old employee has terminated,
2. Within 3 months after the termination, the employee becomes employed by the new employer,
3. The work the employee performs for the new employer is the same, or substantially the same, as the work they performed for the old employer, and
4. There is a connection of the kind prescribed in section 311(3)-(6). In this case, the relevant sections are s.311(3) (transfer of assets) and s.311(6) (associated entities).

• [19] Mr Hinton's employment with Eagle Bright terminated and he became employed by Grae Bay within 3 months of that termination. The work he performed for Grae Bay was exactly the same as the work he performed for Eagle Bright. There is a connection of the kind prescribed in s.311(6) of the Act, because the two entities are associated entities.

• [20] Although not strictly necessary to decide, I also consider the 'transfer of assets' connection to have been met. Section 311(3) provides:

"(3) There is a connection between the old employer and the new employer if, in accordance with an arrangement between:

(a) the old employer or an associated entity of the old employer; and

(b) the new employer or an associated entity of the new employer;

the new employer, or the associated entity of the new employer, owns or has the

beneficial use of some or all of the assets (whether tangible or intangible):

that the old employer, or the associated entity of the old employer, owned or had the beneficial use of; and

(a) that relate to, or are used in connection with, the transferring work."

• [21] On the evidence, there was an arrangement between Nicks Foods and Grae Bay for Grae Bay to 'take over' the contract for supply of labour from Eagle Bright in March 2025. Under that contract, Eagle Bright's beneficial use of trucks owned by FCD Holdings (also a related entity of Nicks Food) to perform the work for which it was contracted, passed to Grae Bay. It acquired the beneficial use of the same trucks (for use by the same employees) who, at least in relation to Mr Hinton, performed the same work for Eagle Bright and then Grae Bay.

• [22] Grae Bay submits that it chose not to recognise the prior service of Mr Hinton when it took over his employment from Eagle Bright. I reject the submission. Mr Hinton's payslips indicate a transfer of his accrued leave entitlements from one entity to the other. Mr Hinton was never informed in writing that his prior service would not be recognised. On the basis that Mr Hinton was employed by Eagle Bright and then Grae Bay, his period of service with Eagle Bright counts toward his period of employment with Grae Bay.

Mr C Tsavdaridis of Tsavdaridis Lawyers for the respondent.

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

[2] Act, s.383

[3] Act, s.384 ("period of employment").

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