s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - Whether the Applicant has completed a period of employment that is at least the minimum employment period - Whether service with one employer counts as service with another employer - Found that the Applicant is a person protected from unfair dismissal

This decision determines a jurisdictional objection made against an application commenced by Mr Mario Mondino (the Applicant) under section 394 of the Fair Work Act 2009 (FW Act) against his former employer, Connect Group Electrical Pty Ltd (CGE / the Respondent).

[2] That jurisdictional objection being whether Mr Mondino was a person protected from unfair dismissal at the time of his dismissal. In making that jurisdictional objection, the Respondent contended that Mr Mondino's period of employment with the Respondent was not of at least the minimum employment period.

[3] On 6 March 2026, the jurisdictional objection was the subject of a hearing before me. The hearing only concerned the jurisdictional objection. Mr Mondino appeared for himself. Ms Jessica Rethouze appeared for the Respondent. All the evidence, submissions and documents relied upon by the parties has been considered.

[4] For the reasons discussed below, I have determined that Mr Mondino's period of employment with the Respondent was of at least the minimum employment period. Consequently, I have determined that Mr Mondino was a person protected from unfair dismissal.

[5] Section 382 of the FW Act provides that a person is protected from unfair dismissal at a time if, at that time:

(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.

[6] The Respondent does not dispute that section 382(b) of the FW Act had been satisfied. The dispute concerns section 382(a) of the FW Act.

[7] On 11 June 2024, Mr Mondino commenced employment with a labour hire company, Lead Group. In the period from 11 June 2024 until approximately 25 July 2024,[1] Mr Mondino performed work for Carrier Electrical. The work appears to have been performed on a worksite in the Sydney suburb of Carlton. There then appears to have been a time gap of a few weeks before Mr Mondino began to perform work for the Respondent under a labour hire arrangement on 9 August 2024.

[8] In the period from 9 August 2024 until 16 February 2025, Mr Mondino performed work for the Respondent on a project at Birrong Boys High School. It is this period of time that Mr Mondino submits should count towards the minimum employment period.

[9] At the hearing, Mr Mondino accepted that there was no contract of employment between the Respondent and himself in the period from August 2024 until 16 February 2025. Mr Mondino also confirmed, at the hearing, that his wages in this period were paid to him by the Lead Group, and not the Respondent. In his written submissions filed in advance of the hearing, Mr Mondino appears to accept that the Lead Group, and not the Respondent, was his employer in the period from 9 August 2024 until 16 February 2025.[2] Mr Mondino was more equivocal at the hearing. I am satisfied that the relationship between Mr Mondino and the Respondent in the period from August 2024 until 16 February 2025 was not that of employee and the employer. Mr Mondino's employer in this period was Lead Group. Mr Mondino performed work for the benefit of the Respondent under a labour hire arrangement. The Respondent was the host of the labour hire workers supplied by Lead Group.

[10] I am satisfied that Mr Mondino commenced employment with the Respondent on 17 February 2025. This is consistent with a contract of employment between Mr Mondino and the Respondent (the Contract) that was before me.[3] The Contract identified that Mr Mondino's employment with the Respondent commenced on 17 February 2025.

[11] On 7 September 2025, the Respondent notified Mr Mondino, by email, that his employment would end on 12 September 2025.[4] The email advised that Mr Mondino's dismissal was due to a lack of available work and the Respondent's operational requirements. I am satisfied that Mr Mondino's dismissal took effect on 12 September 2025.

[12] In advance of the hearing, the Respondent provided a payroll summary for the period from 7 September 2025 to 12 September 2025.[5] The payroll summary records that there were six employees of the Respondent in that period, including Mr Mondino. Mr Luke Massad is a Director of the Respondent. Mr Massad gave evidence at the hearing that the payroll summary was accurate. Mr Mondino was given an opportunity to cross-examine Mr Massad. It is clear from Mr Mondino's cross-examination that any challenge to that evidence from Mr Massad concerned whether the labour hire workers should be included in that list. The question of whether a period of employment with a labour hire company working for a host counts towards a period of service is a different question to whether at the time specified in section 383 of the FW Act the employer is a small business employer. I accept based on Mr Massad's evidence that, at the time specified in section 383 of the FW Act, the Respondent was a small business employer within the meaning of section 23 of the FW Act. This means the minimum employment period for Mr Mondino was one year.

[13] Mr Mondino contended that his period of employment was 13 months. The 13 months consisted of the period from August 2024 until 16 February 2025, which is a period that I have found Mr Mondino was employed by a labour hire company and on-hired to the Respondent, and from 17 February 2025 to 12 September 2025, which is a period where Mr Mondino was unquestionably an employee of the Respondent. The fundamental question is whether Mr Mondino's period of employment with the labour hire company and on-hired to the Respondent counts towards a period of service.

[14] Section 384(1) of the FW Act provides that 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.

[15] Section 22 of the FW Act sets out the meaning of continuous service. Section 22(5) of the FW Act, which is reproduced below, sets out when service with one employer counts as service with another employer:

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.

[16] Section 22(7) of the FW Act, which is reproduced below, sets out the meaning of transfer of employment:

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:

(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

(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.

[17] The conditions in section 22(7)(a) of the FW Act are relevant where the first employer and the second employer are associated entities. The Lead Group and the Respondent are not associated entities. Consequently, the conditions in section 22(7)(a) of the FW Act are not relevant to this application.

[18] The conditions in section 22(7)(b) of the FW Act are relevant to this application because the Lead Group and the Respondent were not (and are not) associated entities when Mr Mondino became employed by the Respondent. Both (i) and (ii) of section 22(7)(b) must be satisfied. Plainly, the condition in contest is (i). That is, whether Mr Mondino is a transferring employee in relation to a transfer of business from the Lead Group to the Respondent.

[19] The meaning of a transferring employee in relation to a transfer of business is found at section 311(2) of the FW Act. Section 311(2) of the FW Act states that 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. Those requirements are:

• The employment of Mr Mondino with the Lead Group has terminated (s.311(1)(a));

• Within 3 months after the termination, Mr Mondino becomes employed by the Respondent (s.311(1)(b));

• The work (the transferring work) that Mr Mondino performed for the Respondent is the same, or substantially the same, as the work that Mr Mondino performed for the Lead Group (s.311(1)(c)).

[20] Those three requirements are satisfied. It is also necessary to consider whether there has been a transfer of business. The effect of section 311(1) of the FW Act is that there will be a transfer of business on satisfaction of the three requirements specified in section 311(1)(a) - (c) plus an additional requirement in section 311(1)(d) of the FW Act. The requirement of section 311(1)(d) is that there is a connection between the Lead Group and the Respondent as described in section 311(3) - (6) of the FW Act.

[21] There is clearly no such connection between the Lead Group and the Respondent as described in section 311(3), (4) or (6) of the FW Act.

[22] The decisive question is whether there is a connection between the Lead Group and the Respondent as described in section 311(5) of the FW Act. Section 311(5) states:

There is a connection between the old employer and the new employer if:

(a) the transferring work had been performed by one or more transferring employees, as employees of the old employer, because the new employer, or an associated entity of the new employer, had outsourced the transferring work to the old employer or an associated entity of the old employer; and

(b) the transferring work is performed by those transferring employees, as employees of the new employer, because the new employer, or the associated entity of the new employer, has ceased to outsource the work to the old employer or the associated entity of the old employer.

[23] In support of his argument, Mr Mondino relied upon Nicole Burdziejko v ERGT Australia Pty Ltd[6] (Burdziejko), which concerned section 311(5) of the FW Act. In that case, Ms Burdziejko was initially employed by a labour hire company (Hays) to work at ERGT and after three months she was offered ongoing employment by ERGT which she accepted.[7] The employer argued that this was a straight labour hire arrangement and not caught by section 311(5) of the FW Act.[8] The Deputy President interpreted the word outsourcing to mean "to contract work outside the company rather employ more in-house staff".[9] The Deputy President went on to find that the 'straight labour hire arrangement' meant that there a connection as described in section 311(5) of the FW Act. Ultimately, the Deputy President found that Ms Burdziejko's period working under a 'straight labour hire arrangement' counted towards her minimum employment period.

[24] The parties did not take me to any other decisions. I am aware of several other single member decisions of the Fair Work Commission in the context of an employee of a labour hire company ceasing employment with a labour hire company to take up employment with the host that have reached a different conclusion to the conclusion reached in Burdziejko.[10] I note the observation made in one such decision "that outsourcing can occur when one employee or a number of employees are involved".[11] I further note the observation in that same decision ''on the plain wording of s. 311(5) there is no apparent requirement that work must have been done in-house before it can be outsourced. In my view, the term "outsource" can apply equally in cases where an employer currently undertakes work in-house or where it plans to undertake new work and decides that rather than directly employing persons to undertake that work, it will outsource the work so that it is undertaken by an external provider".[12] I agree with, and apply, both observations.

[25] I am satisfied that there is a connection between the Lead Group and the Respondent as described in section 311(5) of the FW Act. It is a fact that the transferring work had been performed by one or more transferring employees, such as Mr Mondino, as employees of the Lead Group. Section 311(5)(a) concerns the reason for this state of affairs. Consistent with the single member decisions discussed above, outsourcing should be understood to mean contracting work outside of the company rather than employing more in-house staff. I am satisfied that the reason for this state of affairs was because the Respondent contracted the transferring work outside of the company rather than employing more in-house staff. In summary terms, because the transferring work was outsourced. It is also a fact that the transferring work is performed by one or more transferring employees, such as Mr Mondino, as employees of the Respondent. Section 311(5)(b) concerns the reason for this particular state of affairs. I am satisfied that the reason for this particular state of affairs was because the Respondent determined to perform the work through in-house staff rather than by contracting the work out. In summary terms, because the Respondent ceased to outsource the work. In reaching this finding, I note the observation referred to above that outsourcing can occur when one or a number of employees are involved.

[26] For those reasons, I am satisfied that there has been a transfer of business from the Lead Group to the Respondent.

[27] This conclusion then requires consideration of section 384(2)(b) of the FW Act, which is reproduced below:

(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.

[28] Each of (i), (ii) and (iii) of section 384(2)(b) must be satisfied for Mr Mondino's period of service with the Lead Group not to count towards Mr Mondino's period of employment with the Respondent. The Respondent did not inform Mr Mondino in writing before employment started that his period of service with the Lead Group would not be recognised. It follows that section 384(2)(b) of the FW Act does not operate to exclude Mr Mondino's period of service with the Lead Group from counting towards his period of employment with the Respondent.

[29] For the reasons explained above, I find that the Respondent is a small business employer within the meaning of the FW Act. There has been a transfer of employment between the Lead Group and the Respondent within the meaning of section 22(7)(b) of the FW Act. In accordance with section 22(5) of the FW Act, Mr Mondino's service with the Lead Group counts as service with the Respondent. Section 384(2)(b) of the FW Act does not operate to exclude Mr Mondino's period of service with the Lead Group from counting towards his period of employment with the Respondent. The effect being that Mr Mondino's period of employment was 13 months. This is greater than the minimum employment period. On that basis, I conclude that Mr Mondino is a person protected from unfair dismissal. I dismiss the Respondent's objection that Mr Mondino was not a person protected from unfair dismissal.

[30] The Respondent further objects to Mr Mondino's application on the basis that the dismissal was a genuine redundancy, and also that Mr Mondino's dismissal was consistent with the Small Business Fair Dismissal Code. These objections and merits will be considered. The parties will shortly receive a notice of listing, which lists the matter for a case management conference.

[4] Digital Hearing Book (DHB) page 7.

[6] [2015] FWC 2308.

[10] See, for example, Mr Jared Abbott v Acciona Infrastructure Pty Ltd [2018] FWC 5609, Steve Cokuzovski v Yarra City Council t/a Yarra City Council [2018] FWC 155, David Howarth v ResoureceCo Pty Ltd [2023] FWC 1771.

[11] Mr Jared Abbott v Acciona Infrastructure Pty Ltd (Abbott) [2018] FWC 5609 at [48].

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