s.394 - Application for unfair dismissal remedy

[1] On 13 November 2024, Mr Giuseppe Castagna (the Applicant) lodged an application (the Application) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). The Applicant was employed by Rehals Divine Indian Restaurant (the Respondent).

[2] Unfair dismissal applications must be made within twenty-one (21) days after a dismissal took effect, or in such further time as the Fair Work Commission (the Commission) may allow. On 20 January 2025, the sole matter of the out of time application was allocated to my Chambers.

[3] Throughout the hearing of the out of time application, the Applicant consistently maintained that the dismissal took place on 24 October 2024. The Respondent, on the other hand, contended that the effective dismissal date was 22 October and that the Application was therefore lodged one day out of time.

• [4] In a decision dated 24 February 2025 (the OOT Decision),[1] I found that a text message outlined below dated 22 October 2024, did not constitute a clear and unequivocal dismissal of the Applicant, and that dismissal was communicated in a text dated 24 October 2024, also outlined below. Therefore, the Application was lodged within the required timeframe, and no extension of time was necessary.

[5] On 16 February 2022, the Applicant commenced working with the Respondent as a casual dishwasher.

• [6] In or around August 2023, the Applicant informed the owner of the Respondent, Mr Kumar, as well his wife and shareholder in the Respondent, by telephone as well as by way of SMS that he was leaving work with the Respondent.[2]

[7] On or around 10 November 2023, the Applicant called Mr Kumar and said the words to the effect "Mate, I am back in town and looking for work. Can you please hire me as casual again?" Mr Kumar replied "I will let you know. Should be ok. Will let you know when to start."

[8] The Applicant messaged Mr Kumar and called him again a few times between 10

November and 20 November 2023 to check when he could start again.[3] On 20 November 2023, when he called again, Mr Kumar asked him to come to work in the night. The Applicant's rejoining date as a casual employee was 20 November 2023. In examination in chief, the Applicant confirmed that he resigned from the Respondent in on or about 29 August 2023.[4]

[9] In or around October 2024, the Respondent's business did not require the casual services of the Applicant, and on 22 October 2024, the Applicant received a text message from Kanchan Kumar, an employee of the Respondent (the 22 October Text). The 22 October Text relevantly read:

Hi joey you back pay is already been paid from 1st of July to till now

We have only Monday shift for you this week at 6 o'clock

[10] Two days later, on 24 October 2024, Mr. Castagna received another text message, this time from Rishi Kumar (the 24 October Text). The 24 October Text relevantly read:

Joey, just got an email from Fiona, saying that we haven't paid you the correct wages . As per our records, we have paid you the back pay last Tuesday, which was from July

from $22.60 to $24.20 per hour. We will email you all your payslips.

email with your 75 payslips last time in a zip folder.

And on the other hand , you are working on casual shifts or "on call", and your duties were Dishwashing and emptying the bin at the end of shift, not the deliveries.

So, we only called you when we needed. There is no agreement between you and us for the certain hours.

I was trying calling you, but you are not answering.

Just want to let you know ,we have now full-time Dishwasher. So we don't need any casual staff for dishwashing.

[11] Throughout the Hearing, the Applicant consistently maintained that the dismissal took place on 24 October 2024. The Respondent, on the other hand, contended that the effective dismissal date was 22 October 2024 and that the Application was therefore lodged out of time.

[12] In the OOT Decision, I found the 22 October Text did not constitute a clear and unequivocal termination of the Applicants employment, and actually advised the Applicant of a shift the following Monday. I also found that the dismissal was communicated in the 24 October Text, which, contrary to the submission of the Respondent, was more detailed in outlining to the Applicant that he would not receive any further shifts. Therefore, the Application was lodged within the required timeframe.

The Jurisdictional Objection - Minimum Employment Period

[13] The Respondent submitted that the Applicant is not eligible to bring the Unfair Dismissal claim, and that the Commission does not have jurisdiction in this matter, because the Applicant has not served the minimum employment period.

[14] Section 382 of the Act provides:

382 When a person is protected from unfair dismissal

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....

[15] Section 383 of the Act provides:

(a) if the employer is not a small business employer - 6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(b) if the employer is a small business employer - one year ending at that time.

[16] Section 23 of the Act provides, at sub-section (1):

A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.

[17] In the Hearing the Applicant relied upon a list of 38 alleged employees, while the Respondent relied on a payroll employee summary of eight employees. I prefer the evidence as to employee numbers contained in the Respondent's payroll employee summary, and find that there were eight relevant employees.

[18] I did not accept the Applicant's evidence regarding employee numbers because:

(a) Notwithstanding a direction for the filing of reply materials, the Applicant advised the Commission on 1 December 2025, that it was not going to file reply materials [5]. Having not put in issue the payroll employee summary it was unfair to then challenge its contents;

(b) In cross-examination of Mr Kumar there was no challenge to the accuracy of the payroll employee summary;[6]

(c) In the original Form F2 by which the Applicant commenced the proceedings he had stated the Respondent was a small business employer; and

(d) It was clear that the list of 38 alleged employees contained errors, including that it contained the names of people who previously worked for the Respondent,[7] but resigned well before the dismissal of the Applicant.

[19] Section 384 of the Act defines "period of employment" 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

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

(i) the employment as a casual employee was on a regular and systematic basis; 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; and

(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."

[20] "Service" is defined by s.22 of the Act as follows:

22 Meanings of service and continuous service General meaning

(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

(2) 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

(3A) Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies). If they do so, subsection (3) applies accordingly.

Meaning for Divisions 4 and 5, and Subdivision A of Division 11, of Part 2-2

(4) For the purposes of Divisions 4 and 5, and Subdivision A of Division 11, of Part 2- 2:

(a) 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:

(ii) any other period of a kind prescribed by the regulations; and

(b) a period referred to in subparagraph (a)(i) or (ii) 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; and

(4A) Regulations made for the purposes of subparagraph (4)(a)(ii) may prescribe

different kinds of periods for the purposes of different provisions to which subsection (4) applies. If they do so, paragraph (4)(b) applies accordingly.

When service with one employer counts as service with another employer

(5) 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.

(7) 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

(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.

Note: Paragraph (a) applies whether or not there is a transfer of business from the first

(a) is a transfer of employment between associated entities if paragraph (7)(a)

(b) is a transfer of employment between non-associated entities if paragraph (7)(b) applies."

[21] As Saunders C (as he then was) observed in Harris v Laing O'Rourke Australia

The relevant statutory regime may be summarised in the following way:

(a) An employee must have completed at least the minimum employment period to be

eligible to bring an unfair dismissal claim against their employer (ss.382, 390 & 396 of

(b) For a person employed by a non-small business employer, the minimum employment

period is six months (s.383 of the Act) [For a person employed by a small business

employer, the minimum employment period is twelve months];

(c) An employee's period of employment with an employer is the period of continuous

service the employee has completed with their employer (s.384(1) of the Act);

(d) A period of "service" by an employee with their employer is a period during which

the employee is employed by the employer, but does not include certain "excluded

periods" (ss.12 & 22 of the Act);

(e) The expression "continuous service" is not defined in the Act. The ordinary meaning

of "continuous service" is the period of unbroken service by an employee with an

employer. However, the ordinary meaning of "continuous service" is affected by s.22

(s.12 of the Act);

(f) An "excluded period" does not break an employee's "continuous service" with their

employer, but does not count towards the length of the employee's "continuous service"

(s.22(3) of the Act). "Excluded periods" include a period of unauthorised absence and a

period of unpaid leave or unpaid authorised absence, subject to certain exceptions

(s.22(2) of the Act);

(g) Subsections 22(5) and (7) of the Act alter the ordinary meaning of "continuous

service". In effect, they deem service by an employee with one employer to be service

with another employer if there is a transfer of employment within the meaning of s.22(7)

of the Act. In addition, those provisions stipulate that, in the event of such a transfer of

employment, the period between the termination of employment with the first employer

and the commencement of employment with the second employer does not break the

employee's "continuous service" with the second employer, but the "gap" does not count

towards the length of the employee's "continuous service" with the second employer

(s.22(5)(b) of the Act); and

(h) In order for an employee's service with a previous employer to be deemed to be part

of their "continuous service" with a subsequent employer as a result of a "transfer of

employment", one of the following sets of conditions must be satisfied (s.22(7) of the Act):

• First, the first and second employers must be "associated entities" and the "gap" in

employment must not be more than three months; or

• Secondly, the first and second employers are not "associated entities" and the employee

is a "transferring employee" in relation to a "transfer of business" within the meaning

of s.311 of the Act.

It is plain from the references to a transfer of employment from the "first employer" to

the "second employer" in s.22(5) and (7) of the Act that the deeming provisions in those

sections do not apply unless the employee is employed by two different employers at two

different points in time. The Act does not deem or otherwise permit an employee whose

employment relationship with an employer comes to an end and is later re-employed by

the same employer to have their earlier period of service with the employer combined

with their later period of service as part of their "continuous service" with the same

employer. Put another way, a "gap" between periods of employment with the same

employer would not satisfy the ordinary meaning of "continuous service" because the

service is broken and there is nothing in s.22 or elsewhere in the Act to alter this outcome.

For those reasons, I agree with the conclusion reached in relation to this issue by Commissioner Spencer in Voican v Monadelphous Engineering Pty Ltd at [64]-[69] and Commissioner Roe in Tebble v Rizmas Pty Ltd at [6], but respectfully disagree with the obiter remarks by Commissioner Cambridge in Kefer v Tattersall's Holdings Pty Ltd at [41]-[44].

[22] The determination of whether the Applicant served the minimum employment period of

12 months involves consideration of the gap in employment from August to 20 November 2023. The Applicant's representative conceded:[9]

Fair enough. Okay, I have to concede there wasn't continuous full time employment but there was large tracts of full time employment.

[23] The employment relationship between the Applicant and Respondent ceased when the

Applicant left employment from late August to 20 November 2023.

[24] The Act does not deem or otherwise permit an employee whose employment relationship with an employer comes to an end and is later re-employed by the same employer to have their earlier period of service with the employer combined with their later period of service as part of their "continuous service" with the same employer. Put another way, a "gap" between periods of employment with the same employer would not satisfy the ordinary meaning of "continuous service" because the service is broken and there is nothing in s.22 or elsewhere in the Act

[25] Accordingly, the employment period from 20 November 2023 to 24 October 2024, was approximately one month's less that the minimum required for employment with a small business employer such as the Respondent.

[26] Having not completed a period of employment with his employer of at least the

minimum employment period, the Applicant is not a person protected from unfair dismissal,

and the jurisdictional objection regarding minimum employment period is also upheld.

[27] For the reasons set out above, I am satisfied that;

(a) The Applicant was not dismissed by the Respondent; and

(b) The Applicant was not employed by the Respondent for at least the minimum

[28] It follows that the Applicant is not a person who was protected from unfair dismissal at

the time of his dismissal. The Application is therefore dismissed.

[1] [2025] FWC 413.

[7] Transcript PN 154, 173, 175 and 228.

[8] [2017] FWC 1204, at [8] and [9].

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