//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2020] FWC 4003
defendant. Ms Hardy's unfair dismissal application dismissed because she had not served the one year minimum employment period required for claims against a small business employer; her prior service with JMH...
The Commission found the employer was a small business so a one year minimum service was required. Although the employer bought assets of the applicant's old employer and she commenced with the new employer within three months, the Commission held her new role was different in its totality from her old role. Because the work was not the same or substantially the same as required by the transfer-of-business rules, her prior ten years' service did not count and she had not met the one year threshold. Her unfair dismissal claim was dismissed.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
1 cited instrument linked from this judgment.
1,715 words · generated 04/07/2026
Ms Jessica Hardy applied to the Fair Work Commission for an unfair dismissal remedy under s 394 of the Fair Work Act 2009. The employer, JMH Wholesale Pty Ltd, contended the Commission lacked jurisdiction because Ms Hardy had not served the minimum employment period. The company was a small business, and therefore the one year minimum applied (s 383 and s 23). Ms Hardy had been an employee of JMH Consolidated for about ten years before JMH Wholesale purchased assets of that business on 3 June 2019. She commenced with JMH Wholesale on 2 September 2019 as an operations coordinator, having been offered that role after an incumbent left [1], [12]-[14].
At a jurisdictional hearing on 24 July 2020 before Deputy President Colman, the central issue was whether Ms Hardy’s long prior service with JMH Consolidated could be counted as service with JMH Wholesale under the transfer-of-business provisions (s 22(5) read with s 311), such that she would have met the one year minimum. The Commission accepted the employer’s uncontested evidence that JMH Wholesale employed eight people at the time of dismissal and had no associated entities, and therefore was a small business employer [5]-[6].
The Commission found that there was an asset transfer on 3 June 2019 and that Ms Hardy’s employment with JMH Consolidated had ended and she commenced with JMH Wholesale within three months. Those facts satisfied s 311(1)(a), (b) and (d). However, the Commission concluded that s 311(1)(c) was not satisfied because the work Ms Hardy did for JMH Wholesale was not the same, or substantially the same, as the work she had performed for JMH Consolidated when considered as a whole; she had moved from office manager to operations coordinator and taken on materially different tasks and responsibilities, including ownership of the value chain from order receipt to dispatch [12]-[17]. Because that element failed, Ms Hardy was not a 'transferring employee' and her prior service did not count for the purpose of the minimum employment period. She had therefore served only about nine months with JMH Wholesale. Her application was dismissed for lack of jurisdiction [17], [20].
The decision applied the statutory text of the Fair Work Act. Two statutory regimes were determinative: the minimum employment period provisions (s 383 and s 23) and the transfer-of-business rules (s 22(5), s 22(7) and s 311). The Commission first determined the applicable minimum period by applying s 23's headcount test. Mr Patel’s uncontested evidence that the company employed eight people, including Ms Hardy, was accepted, which meant the one year threshold applied to any unfair dismissal claim [5]-[6].
Having fixed the one year threshold, the Commission then applied the transfer-of-business rules. Section 22(5) permits prior service to count for the new employer only where there has been a 'transfer of employment' as defined by s 22(7). Section 311 sets out the transfer-of-business test, which includes four elements under s 311(1)(a)-(d): termination of employment with the old employer, re-employment within three months, the work for the new employer being the same or substantially the same as the work for the old employer, and a connection between old and new employer (which can be an asset transfer under s 311(3)).
The Commission found the asset transfer and timing elements were satisfied [12], [15]. The decisive legal and factual point, however, was s 311(1)(c). In interpreting that clause the Commission emphasised that the work must be considered in its totality; overlapping tasks are not enough if the overall role is different. Applying that test, the Commission concluded Ms Hardy's role at JMH Wholesale involved additional substantive duties and responsibilities and was qualitatively different from her former office manager role; it therefore failed the 'same or substantially the same' requirement [16]. Consequently s 311(2) did not apply and prior service did not count under s 22(5), so the one-year minimum was not met and the application had to be dismissed [17], [20].
The Commission also noted that it was unnecessary to reach the employer’s alternative contention under s 384(2)(b) that it had notified the employee in writing before employment that prior service would not be recognised [18].
Before this decision the statutory framework in the Fair Work Act set out clearly that prior service could count after a transfer of business, subject to the conditions in s 311. This decision applies those statutory provisions straightforwardly and emphasises the proper approach to s 311(1)(c): look at the whole of the work performed, not merely whether some tasks overlap.
After this decision, practitioners should note the Commission’s insistence on assessing the totality of duties when testing whether the new role is 'the same or substantially the same' as the old. Asset transfer can establish the connection element of s 311(1)(d), but that alone will not suffice if the substantive character of the employee’s role has changed materially. This decision does not alter the statutory test but clarifies its application in situations where employees move from office/administrative roles to roles described differently and involving different lines of responsibility.
Paragraph [6]: "I find that JMH Wholesale was a small business employer ... minimum ... is one year."
Paragraph [15]: "there was an asset transfer ... on 3 June 2019 ... the elements of a transfer of business in s 311(1)(a), (b) and (d) are satisfied."
Paragraph [16]: "It is not sufficient that some of the work ... is the same ... The work must be considered as a whole."
Paragraph [17]: "Ms Hardy is not a transferring employee ... there was no 'transfer of employment' ... and ... her service ... does not count."
Paragraph [20]: "Her unfair dismissal application must therefore be dismissed."
This decision is directly relevant when:
The key trigger is factual: although an asset purchase and re-hiring within three months may support parts of s 311, the 'same work' limb is determinative if the new role’s duties are materially different in aggregate.
This decision is a single-instance Fair Work Commission determination by Deputy President Colman. It applies statutory text and reasoning that will be cited by practitioners and possibly by other panels for similar fact patterns. The judgment does not cite other decisions for its core legal propositions, instead relying on the Act’s language and an application of statutory criteria. Any later court or Commission consideration should be expected to follow the statutory scheme and the interpretive principle emphasised here: that s 311(1)(c) requires assessment of the totality of work, not merely overlap of particular tasks. Users should check subsequent decisions and higher-court treatments for further refinement of the 'whole of work' approach before relying on this decision as precedent.
Several practical questions remain for future litigants and counsel:
Practitioners should assess transfer-of-business issues on the full factual matrix: asset transfers, timing, the content of duties before and after, contract documentation, and any written notices about recognition of prior service. The Commission’s ruling highlights that satisfying one or more statutory elements is insufficient if the 'same or substantially the same' work test fails when applied to the totality of an employee’s role.
s.394 - Unfair dismissal
Application for an unfair dismissal remedy - minimum employment period - transfer of business - whether service with old employer counts as service with new employer
[1] This decision concerns an application by Ms Jessica Hardy for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act). Ms Hardy was employed as an operations coordinator on a full time basis by JMH Wholesale Pty Ltd (JMH Wholesale) from 2 September 2019 until the termination of her employment for reason of redundancy, which the company says occurred on 22 May 2020. Ms Hardy says that she continued to do certain work until 5 June 2020, and that her employment ended on this date. As will become apparent, the disagreement about the date of dismissal is inconsequential for the purposes of this decision, because it is clear that Ms Hardy was employed by JMH Wholesale for more than six months and fewer than 12 months.
[2] JMH Wholesale objects to the application on the jurisdictional ground that Ms Hardy has not served the minimum employment period, which, because the company is a small business, is one year. Ms Hardy says that for over ten years she worked for JMH Consolidated Pty Ltd (JMH Consolidated), a company acquired by JMH Wholesale in June 2019, and that this period should be included in her period of service with JMH Wholesale.
[3] Ms Hardy's unfair dismissal application was listed for a jurisdictional hearing before me on 24 July 2020 in relation to the question of whether she had served the minimum employment period. Ms Hardy appeared and gave evidence for herself. Mr Rajesh Patel, the director of JMH, appeared and gave evidence for the company. There are two questions to be determined. First, what is the minimum employment period in this case? Secondly, has Ms Hardy served that period?
[4] The minimum employment period that a person must have served with an employer in order to be able to bring an unfair dismissal application is six months, or, where the employer is a small business employer, one year (s 383). Section 23 of the Act defines a small business employer as one which, at the relevant time, employs fewer than 15 employees. This number includes casual employees employed on a regular and systematic basis. It also includes the person who has been dismissed, as well as the employees of any associated entity.
[5] Mr Patel gave evidence that at the time of Ms Hardy's dismissal the company employed eight employees, including Ms Hardy. The names of these employees were listed in the company's submissions. I understand these numbers to relate to the time of dismissal contended for by the company, which is 22 May 2020. There is no evidence of the company employing any other persons, either at that time or on 5 June 2020. Mr Patel also said that JMH Wholesale did not have any associated entities. Ms Hardy did not disagree with Mr Patel's evidence about these matters, and I accept it.
[6] I find that JMH Wholesale was a small business employer at the time of Ms Hardy's dismissal and that the minimum employment period that Ms Hardy must have served in order to bring her unfair dismissal application is one year.
[7] Ms Hardy was employed by JMH Wholesale for some nine months. However, she was employed by JMH Consolidated for ten years. If her service with JMH Consolidated counts as service with JMH Wholesale, Ms Hardy has clearly served the minimum employment period. If it does not count, she has not served the minimum period and her unfair dismissal application must be dismissed.
[8] Section 22(1) of the Act states that a period of service is a period during which the employee is employed by the employer, subject to certain excluded periods set out in other provisions. Section 22(5) states that, if there is a 'transfer of employment', any period of service of an employee with the first employer counts as service of the employee with the second employer. 'Transfer of employment' is defined in s 22(7). Relevantly, s 22(7)(b) states that a transfer of employment occurs where the employee is 'a transferring employee in relation to a transfer of business from the first employer to the second employer'; and the first employer and the second employer are not associated entities when the employee becomes employed by the second employer.
[9] JMH Consolidated and JMH Wholesale are not associated entities. The question is then whether Ms Hardy is a 'transferring employee' in relation to a 'transfer of business' from JMH Consolidated to JMH Wholesale. These expressions are defined in s 311 of the Act.
[10] Section 311(1) sets out when a transfer of business occurs. It states:
"Meanings of transfer of business, old employer, new employer and transferring work
"(1) There is a transfer of business from an employer (the old employer) to another employer (the new employer) if the following requirements are satisfied:
(a) the employment of an employee of the old employer has terminated;
(b) within 3 months after the termination, the employee becomes employed by the new employer;
(c) the work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer;
(d) there is a connection between the old employer and the new employer as described in any of subsections (3) to (6).
(2) An employee in relation to whom the requirements in paragraphs (1)(a), (b) and (c) are satisfied is a transferring employee in relation to the transfer of business."
[11] Relevantly for this case, there is a 'connection' between the old employer and the new employer for the purpose of s 311(1)(d) if there is a transfer of assets between them. Section 311(3) states that such a connection exists if, in accordance with an arrangement between the old employer and the new employer, the new employer owns or has the beneficial use of some or all of the assets, whether tangible or intangible, of the old employer, and that relate to or are used in connection with the transferring work (s 311).
[12] Mr Patel gave evidence that JMH Wholesale purchased the business of JMH Consolidated with effect from 3 June 2019. Specifically, he said that JMH Wholesale purchased the customer list and the inventory of JMH Consolidated and assumed its obligations under a commercial lease. At around this time, a number of employees of JMH Consolidated were offered and accepted employment with JMH Wholesale. These included warehouse employees, and a Mr Christopher Ellis, who was employed as the operations co-ordinator. None of this evidence of Mr Patel is contentious.
[13] It was common ground that Ms Hardy became an employee of JMH Warehouse on 2 September 2019, and that she was employed pursuant to a contract of employment dated 27 August 2019, a copy of which was provided to the Commission with the company's submissions. Mr Patel gave evidence that in late August 2019, Mr Ellis left the employment of JMH Wholesale for health related reasons. Ms Hardy said the she had believed Mr Ellis to have been made redundant however Mr Patel's account of the end of Mr Ellis' employment was detailed and convincing and I accept it.
[14] Mr Patel said that, when Mr Ellis left JMH Wholesale, he had a vacancy for the role of operations coordinator, and that he offered this position to Ms Hardy and she accepted it. Ms Hardy's evidence was that when she commenced employment at JMH Wholesale, she continued to perform the work she had previously undertaken at JMH Consolidated in her role of 'office manager', but that she now had a range of additional duties, including responsibilities for invoicing, logistics, dispatch, and working with the warehouse. She said that it was a different role. I accept this evidence.
[15] Applying the facts above to s 311, I make the following findings. First, there was a 'connection' between JMH Consolidated and JMH Wholesale for the purpose of s 311(1)(d) because there was an asset transfer from the former to the latter on 3 June 2019. Secondly, the employment of Ms Hardy with JMH Consolidated ended. Thirdly, within three months of the termination of her employment with JMH Consolidated, Ms Hardy became an employee of JMH Wholesale. The elements of a transfer of business in s 311(1)(a), (b) and (d) are satisfied.
[20] For the above reasons, Ms Hardy has not served the minimum employment period of 12 months. Her unfair dismissal application must therefore be dismissed.
Printed by authority of the Commonwealth Government Printer
Jessica Hardy
JMH Wholesale Pty Ltd [2020] FWC 4003
Ms Hardy's unfair dismissal application dismissed because she had not served the one year minimum employment period required for claims against a small business employer; her prior service with JMH Consolidated did not count because there was no transfer of employment in relation to her under s 311(1)(c) [20].
[16] However, I find that the element in s 311(1)(c) is not satisfied. It is not the case that 'the work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer'. It is not sufficient that some of the work performed for the new employer is the same or substantially the same as that performed for the old employer. The work must be considered as a whole. Although Ms Hardy continued to do the work of her office manager role at JMH Consolidated, she now had additional substantive tasks, in a different position. She had been the office manager at JMH Consolidated. Now she was the operations coordinator for JMH Wholesale. The totality of the work she performed for JMH Wholesale was not the same, or substantially the same, as the work she had performed for JMH Consolidated. She acknowledged that this was a different role. Mr Patel said, and I accept, that Ms Hardy was responsible for all the value chain from when the order is received to the time the goods are dispatched. This work was qualitatively different from that of the work Ms Hardy performed for the old employer.
[17] I therefore conclude that Ms Hardy is not a transferring employee for the purpose of s 311(2), and that accordingly there was no 'transfer of employment' from JMH Consolidated to JMH Wholesale in relation to Ms Hardy for the purpose of s 22(7), and that for this reason, her service with JMH Consolidated does not count as service with JMH Wholesale under s 22(5).
[18] It is not necessary for me to consider the company's further contention that it informed Ms Hardy in writing before she became an employee of JMH Wholesale that her period of service with the old employer would not be recognised (see s 384(2)(b)).
[19] Because Ms Hardy has not served the minimum employment period, the Commission cannot proceed to consider the merits of her application. I appreciate Ms Hardy's substantive concern that the role she performed for JMH Wholesale was an important one and that the work of this role is still required. But I also note Mr Patel's position that this role no longer exists and that the tasks associated with it have been distributed to other employees. I make no findings or conclusions about these matters, because it is not necessary or appropriate to do so. I would simply note that, depending on the circumstances, a position can legitimately be made redundant, despite the fact that its constitutive tasks still need to be done and will be redistributed. It is not uncommon for this to occur in difficult economic times. In this regard, Mr Patel said that the business had suffered a reduction of more than 80% in revenue.