Fair Work Act 2009

s.394 - Unfair dismissal

• [1] On 13 May 2025, Ms. Jenae Abel made an application claiming she was unfairly dismissed from her employment with Immix Integrated Metal Management Pty Ltd (Immix). Ms. Abel seeks compensation.

• [2] Immix has raised a jurisdictional objection alleging that Ms. Abel's employment did not meet the minimum employment period prescribed by s 383 of the Act.

• [3] On 12 August 2025, the jurisdictional objection was heard by way of Determinative Conference using Microsoft Teams. Ms. Abel attended for herself and Mr. Dean Courtenay of Immix's Human Resources department attended for Immix.

• [4] For the following reasons, I am not satisfied Ms. Abel was a person who was protected from unfair dismissal within the meaning of s 382 of the Act. The application is therefore dismissed.

When can the Commission order a remedy for unfair dismissal?

• [5] Section 390(1) of the Act provides that the Commission may order a remedy if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

• [6] For the purpose of this proceeding, I must be satisfied that Ms. Abel is a person who was protected from unfair dismissal at the time she was dismissed.

When is a person protected from unfair dismissal?

• [7] Section 382 of the Act provides that a person is protected from unfair dismissal, at a time if, at that time (emphasis added):

(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

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

Meaning of minimum employment period and period of employment

• [8] Section 383 provides a definition 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.

• [9] Period of employment is defined in s 384 as follows:

(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.

(a) a period of service as a casual employee does not count towards the employee's period of employment unless:

(i) the employment as a casual employee was as a regular casual employee; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised.

the period of service with the old employer does not count towards the employee's period of employment with the new employer.

• [10] Immix does not claim to be small business employer. The relevant minimum employment period was six months under s 383(a).

• [11] It is not disputed Ms. Abel commenced employment with Immix on 11 November 2024. On 8 May 2025, Ms. Abel was notified by text message that her role was being made redundant. She was provided a termination letter the next day confirming her role was being made redundant effective immediately.

• [12] Section 383 states the period of employment to be considered ends at the earlier of the notice given of the dismissal or immediately before the dismissal itself. The text message may be notice of the dismissal under s 383(a)(i). However, no date of termination was provided in that text. Even if this does not constitute notice, she received the termination letter on 9 May 2025, which was effective immediately.

• [13] The date of the text message and the date of the termination letter are both short of six months from the date of employment by either 3 or 2 days respectively.

• [14] I therefore find Ms. Abel was employed for, at most, five months and twenty-eight days. At the time of her dismissal, Immix employed 62 employees. The minimum employment period that applied was six months. It follows Ms. Abel was not employed for the relevant minimum employment period as prescribed by s 383(a).

• [15] Ms. Abel is not a person protected from unfair dismissal. This application is therefore dismissed.[1]

[1] PR790593.

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