s.394 - Unfair dismissal

Application for an unfair dismissal remedy - minimum employment period - Respondent not a small business - Applicant working across multiple associated entities of the Respondent - service for all entities counted - Applicant working regularly - reasonable expectation of continuing employment on a regular and systematic basis - objection dismissed.

• [1] On 31 March 2025, Mr Jonathan McCosker (Mr McCosker/ the Applicant) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy, alleging he was unfairly dismissed from his employment with The Trustee For Albatross North Lakes Trust (the Respondent). The Respondent has raised a jurisdictional objection to the application that the Applicant does not meet the minimum employment period prescribed by s.383 of the Act. The matter was listed for jurisdictional hearing on the minimum employment period issue on 23 June 2025. Directions were issued for the filing of submissions and parties filed further material.

• [2] Mr Anthony Mahler, Owner appeared on behalf of the Respondent, and the Applicant appeared on his own behalf.

• [3] Ms Leigh Briggs, Operations Manager provided a witness statement dated 17 June 2025 for the Applicant, and Mr Mahler provided a witness statement dated 3 June 2025. Mr Liam Knott, Venue Manager of Maroochydore provided a witness statement dated 23 June 2025 for the Respondent however it was predominantly related to the redundancy issue. Mr Knott was not called to give evidence on that basis. Mr McCosker also provided a statement of 20 June 2025, however it was also not directly relevant to the specific jurisdictional matter being dealt with in this proceeding.

• [4] Mr McCosker had been employed with the Respondent for a disputed duration of time. The Respondent made Mr McCosker's position as Training Manager redundant on 10 March 2025. Mr McCosker was employed as a casual employee with Three Kings Wealth Holdings Pty Ltd T/A XGolf Maroochydore since at least 21 October 2021. He accepted full time employment with the Respondent on 28 October 2024, although the contract is dated 25 November 2024. The Respondent submitted that the Applicant commenced in the role on 9 December 2024 and was a casual employee with them from 14 June 2024 until 8 December 2024. There is dispute between the parties as to the correct commencement of employment date.

• [5] It is undisputed that the employment relationship came to an end on 10 March 2025, when the Applicant received a letter from the Respondent advising that his position had been made redundant. The Applicant disputes that the redundancy was genuine.

• [6] The Respondent is a Golf and Entertainment company developing products in the golf industry. In the months of February to March 2025, the Respondent experienced a significant downturn in revenue. Mr Mahler stated that the business had cashflow difficulties arising from a flooding event that affected another business he owned. The Respondent pointed to this as contributing to the reason Mr McCosker's position was made redundant.

• [7] The Respondent submitted that it was a small business employer, employing less than 15 employees. The Applicant disagreed, noting that the Owner of the Respondent owned several other stores in the same franchise that he also worked in.

• [8] To determine the number of employees of the Respondent, in addition to employees of the specific business, any employees of associated entities must also be tallied.[1] Associated entity is defined in s.50AAA of the Corporations Act 2001 (Cth) as:

(1) One entity (the associate) is an associated entity of another entity (the principal) if subsection (2), (3), (4), (5), (6) or (7) is satisfied.

(2) This subsection is satisfied if the associate and the principal are related bodies corporate.

(3) This subsection is satisfied if the principal controls the associate.

(b) the operations, resources or affairs of the principal are material to the associate.

(a) the associate has a qualifying investment (see subsection (8)) in the principal; and

(b) the associate has significant influence over the principal; and

(a) the principal has a qualifying investment (see subsection (8)) in the associate; and

(b) the principal has significant influence over the associate; and

(a) an entity (the third entity) controls both the principal and the associate; and

(b) the operations, resources or affairs of the principal and the associate are both material to the third entity.

(8) For the purposes of this section, one entity (the first entity) has a qualifying investment in another entity (the second entity) if the first entity:

(a) has an asset that is an investment in the second entity; or

(b) has an asset that is the beneficial interest in an investment in the second entity and has control over that asset."

• [9] Mr Mahler's evidence was that the Respondent employed 8 staff at the time of the Applicant's dismissal.

• [10] Ms Briggs' evidence was that the Respondent employed 22 employees across all the associated entities in Maroochydore, Toowoomba and North Lakes.

• [11] During the hearing, Mr Mahler confirmed that the Applicant was employed by one of his businesses when he was employed as a casual employee. Mr Mahler stated that there are 3 franchises that are all separate entities, controlled by a corporate trustee of which he is a director. Mr Mahler confirmed he purchased the North Lakes business in 2021, the Maroochydore business in June 2022 and the Toowoomba business in May 2024. As such, Mr Mahler conceded that due to a shared corporate trustee, the other businesses were associated and when employees of the associated entities were added, the Respondent was not a small business and employed more than 15 staff. It is apparent that the Respondent, given that the separate entities were associated entities, was not a small business at the time of the Applicant's termination.

• [12] On that basis, the hearing proceeded on the understanding that the Applicant need only have served the requisite minimum employment period of 6 months as per s.383(a) of the Act.

• [13] The Respondent continued to submit that despite this shortened minimum employment period, that the Applicant had not served the minimum employment period required and therefore was still not eligible to make his application.

• [14] The Respondent submitted, in summary, that the Applicant was employed full time for just over 3 months, and the total employment period, including casual employment was 8 months and 27 days. However, the Respondent continued that the Applicant's casual employment was not 'continuous' or 'regular and systematic' enough for the additional 5 or so months of employment to be considered as service.

• [15] The Applicant submitted that he had worked for the Respondent business, and its associated entities as far back as 21 October 2021.

• [16] The parties submitted payslips and timesheets stretching the length of the employment relationship. A summary of the hours worked and for which entity, as supported by evidence, is below:

• [17] Ms Briggs' evidence was that sometimes, if the Applicant worked across multiple stores in one pay period, all hours would appear and be paid through only one of the entities, rather than being split across the entities, for administrative ease.

• [18] Ms Briggs said the Applicant was working across all 3 stores in February 2024.

• [19] Mr Mahler submitted that the Applicant's work was sporadic in nature, referring to a period where on 28 February 2024, the Applicant next worked on 20 April 2024.

• [20] Mr Mahler's evidence was that the Applicant was not systematically employed, with shifts not being rostered in advance, shifts occurring at different times on different days, and sometimes not for a month and then for 3 or 4 days in a row.

• [21] Ms Briggs' evidence was that the Applicant was systematically employed (performing roughly full time hours every week) from the opening of the Toowoomba store, in June 2024 until he was offered permanent employment in November 2024. She also gave evidence that the Applicant was working 2-3 days per week from March 2024 onwards and considered this systematic also. Ms Briggs stated that once the Toowoomba store opened, the Applicant was being paid through the North Lakes store, rather than the Maroochydore store which had previously been paying him. Ms Briggs stated that during that period, the only time when the Applicant would not have been working, or there was a break in his payslips, was when the store was closed for renovations.

• [22] Mr Mahler's evidence was that the Applicant worked non regular, ad hoc, team member shifts, not on any regular basis. From September 2024 (the 6 months before the end of employment) the Applicant had only been rostered a handful of times at the North Lakes store, and therefore he did not believe the Applicant could have had an expectation of regular work from that point.

• [23] Mr Mahler submitted financial records which indicated that from June to September 2024, the Applicant earned $2,600, averaging about 1-2 shifts per fortnight and therefore he submitted that there could be no reasonable expectation of continuing employment. Mr Mahler referred to a document outlining the total earnings of the Applicant from February 2024 to 10 September 2024, where he said the Applicant's earnings for the Maroochydore store were $4,181 and $9,315 for the North Lakes store.

• [24] Mr Mahler's evidence was that up until mid-October 2024, the Applicant had hardly any rostered shifts, up until about 2 weeks before he was made full time, when he started working 75 to 80 hour fortnights.

• [25] Mr Mahler believed that rostering was an indication of regularity and therefore relied on the lack of rostering of the Applicant to support his assertion. He said up until 10 September 2024, the Applicant was only rostered a total of 6 times in 6 months and 4 of those times were consecutive. Overall, the Applicant filled gaps when none of the regular casuals or permanent employees were available.

• [26] The Applicant said rostering was not an adequate reflection of the hours he worked but conceded that all hours he worked would have been reflected on his payslips. The payslip records have been presented in the table above.

• [27] The Applicant's evidence was that he disagreed with Mr Mahler's explanation of his work. He said he wasn't on call to come in whenever it was needed, he was rostered. From March 2024 he said he worked in the Toowoomba store fairly regularly.

• [28] The Applicant's evidence is that from March to June 2024, he agreed he was doing sporadic ad hoc shifts, however from June 2024 onwards he said he was rostered, whether it be one shift, two shifts or a cleaning shift and he said he was regularly working. From August 2024 he said he had a payslip for every fortnightly pay cycle showing he was employed at North Lakes and other stores. He said he was working continuously in various roles including cleaning and filling in shifts. He said between Maroochydore and North Lakes he was systematically employed.

• [29] As it has been determined the Respondent is not a small business employer, the minimum employment period is 6 months. The Applicant became a permanent employee in November 2024. It is the period of casual employment before being permanent from 10 September 2024 up to the point of becoming permanent that is relevant to the question of whether this period of casual employment should be counted.

• [30] Section 384(1) of the Act provides 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.

(2) [When casual employment counts toward period of employment]

(a) a period of service as a casual employee does not count towards the employees'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;

• [31] The Act does not define employment on a 'regular and systematic basis'. In Yaraka Holdings Pty Limited v Giljevic[2] it was said as follows:

"[65] It should be noted that it is the "engagement" that must be regular and systematic; not the hours worked pursuant to such engagement. Furthermore, the section applies to successive contracts and non-continuous periods of engagement. It is true that subs (3) provides that, in working out whether an engagement has been on a regular and systematic basis, a court must consider, inter alia, the frequency of work, the number of hours worked under the contract or similar contracts and the type of work. However, these statutory criteria relate to the decisive issue of whether the relevant engagement has been on a regular and systematic basis. The section contains nothing to suggest that the work performed pursuant to the engagements must be regular and systematic as well as frequent."

• [32] In Ponce v DJT Staff Management Services Pty Ltd T/A Daly's Traffic[3] the following observations were drawn from Yaraka:

"it is the engagement which must be regular and systematic not the hours of work pursuant to such engagement.

Connolly J was right to conclude that the absence of any contractual requirements for the respondent to work at set times or of any assumption that he be present on a daily, weekly or monthly basis unless told otherwise did not preclude a finding that his engagements had been regular and systematic."

"the concept of engagement on a systematic basis does not require the worker to be able to foresee or predict when his or her services may be required. It is sufficient that the pattern of engagement occurs as a consequence of an ongoing reliance upon the worker's services as an incident of the business by which he or she is engaged."

[72] In the same case in a separate judgement Madgwick J found:

"it is clear from the examples that a 'regular...basis' may be constituted by frequent though unpredictable engagements and that a systematic basis need not involve either predictability of engagements or any assurance of work at all.

Engagement under contracts on a systematic basis implies something more than regularity in the sense just mentioned, that is frequency. The basis of engagement must exhibit something that can fairly be called a system, method or plan."

• [33] In Ponce it was observed that where there is no clear pattern or roster, evidence of regular and systematic employment can be established where the employer offered suitable work when it was available at times that the employee had generally made themselves available, and work was offered and accepted regularly enough that it could no longer be regarded as occasional or irregular.

• [34] Mr Mahler points to the rosters and the lack of the Applicant being rostered regularly in September and October and into early November 2024 to support his position that the Applicant did not work regularly or systematically. However, the hours worked by the Applicant as demonstrated by the payslips and timesheets indicate the Applicant was working more hours than he was being rostered for, and this information paints a different picture to the rosters.

• [35] Section 23 of the Act makes clear that the employees of associated entities are included in the head count for the purposes of determining whether a Respondent to an unfair dismissal application is a small business. A question arises as to whether the casual work performed at a store operated by an associated entity of the Respondent also counts for determining whether the Applicant was a regular and systematic employee of the Respondent.

• [36] In the particular facts of this case, the Maroochydore and North Lakes stores had the same corporate trustee, and it is apparent that Mr Mahler as a controlling director of both entities, had effective control over both stores. The Applicant was being deployed at the two different stores at the direction of Ms Briggs who was acting with the authority of Mr Mahler, and the level of integration between the entities leads me to the conclusion that the casual hours of work at both stores should both be counted to assess whether the casual employment was regular and systematic, and the Applicant had a reasonable expectation of ongoing employment.

• [37] Applying the authorities set out above to the facts in this case, I am satisfied by reference to the hours worked set out in the table above that from the period between 10 September 2024 up to the point of becoming a permanent employee, the Applicant could properly be described as a regular and systematic casual employee during the relevant period, as he satisfies the two criteria of working regularly and having a reasonable expectation of continuing employment on a regular and systematic basis.

On the basis of the conclusion above, the jurisdictional objection that the Applicant has not satisfied the minimum employment period is dismissed. The matter will be listed for further directions.

[1] Section 23 Fair Work Act 2009 (Cth).

[3] [2010] FWA 2078 at [70].

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