Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - jurisdictional objection - minimum employment period not met - employee engaged for separate periods of employment - continuous service broken on resignation for retirement - second period of employment does not meet minimum employment period.

[1] On 26 September 2025, Mr Andrew Cooper (Mr Cooper or the Applicant) was dismissed from his employment as a casual disability support worker with Community Assist Regional Enterprises Pty Ltd (the Respondent). On 8 October 2025, Mr Cooper made an application to the Fair Work Commission (the Commission) alleging he was unfairly dismissed by the Respondent pursuant to section 394 of the Fair Work Act 2009 (the Act).

[2] On 28 October 2025, the Respondent filed its Form F3 - Employer Response raising a jurisdictional objection that the Applicant had not met the minimum employment period and was therefore not a person protected from unfair dismissal and eligible to make an application for a remedy.

[3] At the hearing, Mr Cooper represented himself and gave evidence on his own behalf. Ms Karen King, Mr Cooper's partner, submitted a witness statement on behalf of the Applicant but was not required for cross-examination. The Respondent was represented by Ms Fiona Mercer, Director of the Respondent, who also gave evidence alongside disability support workers employed by the Respondent, Mr Todd King and Ms Jade Gregory.

[4] For the reasons set out below I find that Mr Cooper did not meet the minimum employment period required to bring this application under the Act.

• [5] Under section 382 of the Act, a person is protected from unfair dismissal if they have completed at least the minimum employment period. The minimum employment period for an employer if it is not a small business employer is 6 months.[1] For a small business employer, the minimum employment period is one year.[2]

[6] There is no dispute that the Respondent is not a small business employer and therefore the relevant minimum employment period is 6 months.

[7] Section 384 of the Act sets out that "[a]n 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."

[8] Continuous service is defined in section 22 of the Act:

"Section 222 Meanings of service and continuous service

(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period ) that does not count as service because of subsection (2).

(b) any period of unpaid leave or unpaid authorised absence, other than:

(i) a period of absence under Division 8 of Part 2 - 2 (which deals with community service leave); or

(ii) a period of stand down under Part 3 - 5, under an enterprise agreement that applies to the employee, or under the employee's contract of employment; or

(iii) a period of leave or absence of a kind prescribed by the regulations;

(c) any other period of a kind prescribed by the regulations.

(3) An excluded period does not break a national system employee's continuous service with his or her national system employer, but does not count towards the length of the employee's continuous service."

[9] Mr Cooper asserts that he was employed by the Respondent for more than 6 months. Mr Cooper says that he was employed by the Respondent for an initial period of time and took a period of authorised absence before returning, after which time he was dismissed. He argues that it was one period of employment exceeding 6 months.

[10] The Respondent submits that Mr Cooper worked for it for a period, then resigned and left work on account of retirement. After a period he sought re-employment, which was offered to him, but the second period of employment was a new period of employment and the service was not continuous. The Respondent's position is that the second period of Mr Cooper's employment did not meet the minimum employment period.

[11] Mr Cooper commenced employment as a casual disability support worker with the Respondent on 19 August 2022. He was employed by the Respondent until 21 June 2025 when Mr Cooper says he went on a long period of leave and the Respondent says he resigned from his employment.

[12] After a period of time, Mr Cooper contacted Ms Mercer asking if he could return to work with the Respondent. Ms Mercer agreed and Mr Cooper started performing casual shifts for the Respondent from 4 August 2025.

[13] Mr Cooper signed an employment contract dated 4 August 2025 that set out his commencement date of 4 August 2025 and specified that he was engaged with the Respondent on a casual basis with a probationary period of six months. The 'Hours of Work' clause in the employment contract includes: "By definition, Casual Employees are not guaranteed ongoing employment. ... The Employee's hours of work will vary from day to day and/or week to week and there is no guarantee of fixed or regular hours."

[14] Mr Cooper was dismissed from his employment with the Respondent on 26 September 2025. The letter of termination simply advises Mr Cooper that the Respondent had determined not to continue his employment beyond his probationary period and as such had determined to terminate his employment effective of 26 September 2025. The probationary period was not due to expire until December 2025.

• [15] An issue arose prior to the termination of Mr Cooper's employment in which the Respondent alleges that Mr Cooper drove a client in an unsafe vehicle with a broken door handle, secured only with an octopus strap. The Respondent asserts that the client complained about feeling unsafe when it was necessary to hold the door to prevent it from opening on a highway and going around corners.[3]

[16] Mr Cooper was issued with a written warning in response to the incident which he asked Ms Mercer to withdraw. The Respondent says they conducted a meeting with Mr Cooper at which Ms Mercer expressed concern that Mr Cooper had failed to acknowledge the seriousness of the safety issue. Mr Cooper was advised verbally that his employment was being terminated because his probationary period was unsuccessful and a letter of termination was posted to him on 26 September 2025. Ms Mercer's evidence is that Mr Cooper did not pick up the mail sent to him until 8 October 2025. In the meantime, on 28 September 2025, Mr Cooper emailed a letter of resignation to the Respondent.

[17] The Respondent asserts that Mr Cooper was employed from 4 August to 26 September 2025 at which time his employment was terminated. The Respondent's position is that Mr Cooper ceased work on 21 June 2025 when he ended his employment on account of retirement. He then commenced a subsequent period of employment commencing on 4 August and ending on 26 September 2025.

• [18] Mr Cooper says that he was employed from 19 August 2022 until he resigned on 28 September 2025.[4] Mr Cooper's evidence was that he took a break between 21 June 2025 and his return to work on 4 August 2025, and as there was no resignation or other ending of his employment in June 2025 his service was continuous and he had met the minimum employment period. Mr Cooper strenuously objected to any assertion that he had retired in June 2025.

• [19] Mr Cooper accepted in evidence that he was verbally dismissed on 26 September 2025,[5] despite his resignation of 28 September 2025.

[20] A significant amount of time at the hearing was directed towards evidence and submissions about whether Mr Cooper had taken a break between June and August 2025 or whether he had concluded his employment in June 2025 and recommenced a new period of employment in August 2025.

• [21] It is Ms Mercer's evidence that Mr Cooper informed her during a meeting that he intended to retire from employment, with his final day being 21 June 2025.[6] Ms Mercer says that Mr Cooper stated that as he was turning sixty, he would be able to retire and withdraw his superannuation.[7] The Respondent submitted into evidence materials that it says substantiated Mr Cooper's voluntary retirement on 21 June 2025, including:

(a) An email from Ms Mercer to a client (name redacted) on 27 May 2025 advising that Mr Cooper was retiring 'towards the end of June';

(b) A screen shot of a text message exchange between Ms Mercer and Mr Cooper asking if he would like "a retirement post on Facebook or prefer to keep it in the team?" Mr Cooper responded: "Either is fine, maybe on Facebook ... last shift is going well";

(c) An email from MYOB accounting software providers (undated) which said: "we can confirm that Andrew Cooper was terminated as of June 22, 2025" in reference to his status on the payroll system;

(d) A receipt for a Bunnings voucher that Ms Mercer says was purchased as a farewell present for Mr Cooper on 20 June 2025;

(e) A screen shot of a Facebook post from Mr Cooper dated 18 August 2025 that said: "This morning before work (oh yeah, shortest retirement in history, I have the best job with C.A.R.E Disability) I got to do some sanding of the kitchen bench...";and

(f) A copy of an application form discovered by Mr Cooper, seeking release of his superannuation from his superannuation fund. In the application form, Mr Cooper ticked the box: "I am aged 60 to 64 and I have ceased employment with any employer since turning 60. My last day of employment was:" and Mr Cooper inserted: "21 06 2025".

• [22] Ms Mercer's evidence was that Mr Cooper had discussed with her his plans for retirement. In an acknowledgment of Mr Cooper, Ms Mercer said that she organised and paid for a retirement party for Mr Cooper including purchasing a retirement gift, with his agreement announced his retirement on social media and off-boarded him for a number of internal software systems. Ms Mercer gave evidence about the "substantial administrative undertaking"[8] to off-board an employee which she would not have undertaken if Mr Cooper was merely having an extended break.

[23] Mr King, a colleague of Mr Cooper, gave written and oral evidence that he had been informed of Mr Cooper's retirement by Ms Mercer and been asked to shadow Mr Cooper before 21 June 2025 in order to take over assistance of a client. Mr King's evidence was that he attended the shift and Mr Cooper discussed his retirement plans. Mr King also said he attended Mr Cooper's retirement party on 20 June 2025.

[24] Ms Gregory, another colleague of Mr Cooper, gave evidence that she attended Mr Cooper's retirement party on 20 June 2025 and overheard him speaking about his retirement plans and renovations he had planned.

• [25] It was Mr Cooper's assertion in his written evidence that his employment was continuous from 19 August 2022 until his termination on 26 September 2025. Mr Cooper's evidence was that he initially told Ms Mercer that he was "taking a break at the age of 60" in a telephone discussion and then met with Ms Mercer six weeks prior to taking the break. Mr Cooper asserts he was "totally transparent about taking his super out and maybe retiring" but subject to his financial position "continuing working may be an option" to which Ms Mercer agreed. Mr Cooper's evidence was that he "decided he could access his superannuation without retiring" and he went ahead with his plan of continuing work after his break.[9]

• [26] Ms King, Mr Cooper's partner, provided a witness statement in the matter. Ms King says in her statement, in reference to herself and Mr Cooper: "We discussed his possible retirement at 60 so that he could access his superannuation. We came to the conclusion that this was not financially viable and found that he could still access his superannuation and recommence work again after a break." Ms King attended the event held at the workplace for Mr Cooper but rather than a retirement party, she describes it as "a social gathering to celebrate his contributions and pending break." Ms King alleges that Ms Mercer said words to the effect that Mr Cooper would not have another event in his honour "if and when he chose to stop work completely."[10]

[27] There is strong evidence that Mr Cooper voluntarily concluded his employment in June 2025. His resignation from employment with the Respondent enabled him to declare to his superannuation fund that he had ceased employment and was no longer employed by any employer. Mr Cooper subsequently received his superannuation benefits.

[28] I prefer the evidence of Ms Mercer that Mr Cooper advised her he was retiring and gave Ms Mercer six weeks' notice of his resignation. I prefer Ms Mercer's evidence because it is supported by evidence that she arranged and paid for a farewell event, including the purchasing of a gift. This conduct is inconsistent with an employee leaving for a period of leave, even if it were extended. I do not accept Ms King's characterisation of the event as a social gathering to celebrate Mr Cooper's achievements and upcoming break.

[29] I accept that Ms Mercer went to the effort of removing Mr Cooper from work-related software systems. This is also conduct inconsistent with an understanding that an employee is simply taking a break.

• [30] Mr Cooper's assertion that he was merely taking a break is also inconsistent with his conduct in sending a text to Ms Mercer agreeing to communicate his retirement on social media and his own social media posts referring to what he now says was a break as "the shortest retirement in history." When asked about why he used the word 'retirement' in this post in his oral evidence Mr Cooper said: "for me to try to attend to everyone who had been told I had retired was impossible so this [post] is trying to do the job and I am saying shortest retirement in history to say well, to that audience who think I am retired, well okay, you know, if that is what you think, it was the shortest ever retirement. ... On [social media] they would see that yes, I had retired but people who I know knew I wasn't retired."[11] I am not persuaded by Mr Cooper's response. His social media post, made contemporaneously with his return to work, is consistent with a person who retired but was announcing his return to the workforce.

[31] I am particularly persuaded to the view that Mr Cooper resigned from his employment by the declaration to his superannuation fund that he had ceased employment with any employer and his clear statement about his last day of work. Ms King says that they had agreed that Mr Cooper was financially able to retire and intended to re-commence work at a later date. This does not mean that Mr Cooper did not resign in the meantime.

• [32] In cross examination about the declaration to his superannuation fund, Mr Cooper said: "I actually did cease, that is correct, but I didn't retire." When I asked Mr Cooper: "You accept that you ceased employment?" he responded "Yeah, for sure."[12]

[33] The following exchange took place later in Mr Cooper's evidence:

"Commissioner: So at the time you filled in this [superannuation] form, you had stopped working, whether or not you were going to re-start you agree that you had stopped working for Ms Mercer?

Commissioner: And that your last day of employment was the 21st of June 2025?

Commissioner: So you agree that when you then went back to work for Ms Mercer, you re-started?

Commissioner: But you re-started, because you just told me you agree that you ceased employment? You restarted with her six weeks later?

[34] The evidence I have referred to establishes that Mr Cooper had in fact resigned in order to advise his superannuation fund he was no longer employed in any employment and obtain release of his superannuation benefits.

[35] Mr Cooper may have always intended to return to work at a later point (evidence supported by Ms King) but I accept Ms Mercer's evidence that Mr Cooper's intention to later seek a return to work was not communicated to her. The balance of the evidence I have referred to supports my finding that Mr Cooper told Ms Mercer he was retiring and when he did so he was resigning from employment. Whether he intended to return at a later time does not detract from the fact he ended his employment with the Respondent when he advised of his retirement.

[36] The use of the terms retirement and resignation appear to have been confused by the Applicant in this matter. On one hand Mr Cooper may appear opportunistic to now assert he did not retire but rather took a break from his employment with the Respondent in order to meet the minimum employment period. However, it appeared to me from Mr Cooper's evidence that he misunderstood the concepts of retirement and resignation. Mr Cooper was vehement that he did not retire because he planned to return to work at a later point.

[37] When an employee voluntarily leaves employment to retire, they have resigned from their employment. It is a termination of employment at the voluntary initiative of the employee on account of age or some other characteristic, such as invalidity. An employee who has resigned to retire is not then bound never to work again. The employee can resign from employment in order to retire but can change their mind and seek to re-enter the workforce with the same, or a different employer. What is relevant to this matter is that even if Mr Cooper planned to later return to work and not give up paid work forever, his expression of his intention to retire from employment with the Respondent was a resignation from his employment that ended the initial period of employment with the Respondent.

• [38] I accept Ms Mercer's evidence that she then agreed to re-employ Mr Cooper when he sought further work on 11 July 2025.[14] The employment contract offered and accepted by Mr Cooper has a clear commencement date for a new period of employment of 4 August 2025 and an applicable probationary period of 6 months. I do not accept that Mr Cooper had to sign a new contract because of a "MYOB malfunction".[15] Ms Mercer explained in her oral evidence that she had always intended to send a new contract to Mr Cooper for the new period of employment but there was a delay in sending it to him because she was completing an audit at the time of his unexpected onboarding. Ms Mercer says she explained the delay to Mr Cooper at the time.[16]

[39] There are no facts to support, nor any assertion by the Applicant in this matter, that as an alternative, the Respondent recognised his earlier period of employment as time served towards a period of continuous service.

[40] For the reasons set out above, I find that Mr Cooper resigned from his employment effective of 21 June 2025. Mr Cooper was re-employed by the Respondent in a new period of employment commencing on 4 August and concluding on 26 September 2025.

[41] Section 222(1) of the Act defines a period of service as "a period during which the employee is employed by the employer ...". On account of his resignation and then later re-employment, Mr Cooper was not employed by the Respondent between 22 June and 3 August 2025 as he asserts.

[42] The approximately seven weeks that Mr Cooper was employed in a new period of employment with the Respondent commencing on 4 August 2025 is less than the 6 months' service required to meet the minimum employment period. As Mr Cooper did not meet the minimum employment period required by sections 382 and 383(a) of the Act, he is not a person protected from unfair dismissal.

[43] Mr Cooper's application is therefore dismissed.

F Mercer for Community Assist Regional Enterprises Pty Ltd, the Respondent.

[1] Fair Work Act 2009, s.383(a) ('the Act').

[2] Ibid, s.383(b).

[3] Form F3 - Employer Response at 3.1(1).

[6] Witness Statement of Ms Fiona Mercer at paragraph 4.

[9] Statement and submissions of the Applicant at paragraph 4.2 and 4.3.

[10] Witness statement of Ms Karen King.

[11] Audio recording of the hearing at 1:16:12 - 1:17:13.

[14] Witness statement of Ms Mercer at paragraph 17.

[15] Statement and submissions of the Applicant at paragraph 7-5.

[16] Discussed in audio recording of hearing at 18:57 - 23:28.

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