• [8] The Applicant relied on his Form F2 - Unfair Dismissal Application, an email providing a dot point list of people he says were employed at the time he was terminated, some who are named and some who are described by role or martial status,[9] and an email that appears to be in response to the Respondent's statutory declaration which appears to raise a number of questions challenging the Declaration with no corresponding answers or evidence.[10] I do note that the Applicant did initially provide a list of a number of employees that he contended were employed by OCR at the last day of his employment[11] however I note that this was prepared prior to the Declaration being filed by OCR and after that occurred, Mr Madden filed a further reply in respect of that declaration in which he raised questions specifically in relation to that evidence. I note there is some overlap in those conflicting contentions of the Applicant pre and post the filing of OCR's Declaration. At the beginning of the hearing, I asked Mr Madden whether he pressed his initial submissions or whether the submissions in reply are his final submissions. Mr Madden said that he pressed both lists.

• [9] The Commission can order a remedy for unfair dismissal if it is satisfied that an applicant was protected from unfair dismissal and is unfairly dismissed.[12] Sections 382 and 383 of the Act provides that a person is protected from unfair dismissal if they have completed a minimum employment period of 12 months if a small business employer, or six months if not a small business employer, is their employer. A small business employer is defined as a business with fewer than 15 employees.[13] OCR submit they are a small business employer, therefore the minimum employment period in this matter would be twelve months if that was correct. The relevant provisions of the Act are sections 382 and 383.

• [10] At the hearing Mr Madden asked Mr Julian if "Rod"[14] was an employee. Mr Julian said he was not, and I find that he was not an employee.

• [11] Further, Mr Madden enquired whether Mr Julian engaged other employees under any related entities. Whilst I note that Mr Madden did not put any evidence before the Commission to support such an allegation, I permitted him to ask this of Mr Julian. Mr Julian gave evidence that there was one existing related entity called "Can Do Loans" however that no employees were engaged by that entity.

• [12] Mr Madden gave evidence, that whilst not in anything previously submitted, I permitted to be given, that there were a number of entities that Mr Julian had been involved with in accordance with his ASIC search however he conceded that none of those entities were in operation as at the date of Mr Madden's termination from OCR

• [13] Mr Madden acknowledged that OCR had 13 employees as at the date his employment was terminated. He did not contest that there were other employees engaged in any other related entity, and he acknowledged that even if "Rod"[15] was an employee of OCR, the count of employees would still not reach the required number of 15.

• [14] I find that it is uncontested on the evidence that OCR engaged 13 employees as at the date of Mr Madden's termination of employment.

• [15] I accept the statutory declaration of the accountant Ms Judy Baker, sworn before a Justice of the Peace, uncontested with a declaration that it annexed a report directly generated from OCRs accounting and payroll system without alteration, evinces that the total number of employees, as a headcount of full time, part time and regular casual employees that OCR engaged as at the day that Mr Madden's employment was terminated on 3 March 2025, including Mr Madden, was 13 employees.

• [16] As the employer had, at the time of Mr Madden's dismissal, fewer than 15 employees, I find the employer is a 'small business employer'. Accordingly, for Mr Madden's unfair dismissal application to proceed, he would have to have been employed for 12 months or more.

• [17] As it is uncontested, Mr Madden was only employed for a period of 9 months, Mr Madden was not 'protected from unfair dismissal' and his application must be dismissed. I order accordingly.

[1] Digital Court Book (DCB) p.5 at [3.1].

[2] Fair Work Act 2009 (Cth) s 382.

[12] Fair Work Act 2009 (Cth) s.390.

[13] Ibid s.23.

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