s.394 - Application for unfair dismissal remedy

Unfair dismissal application-whether the applicant is protected from unfair dismissal - whether the respondent is a small business employer - applicant not employed for minimum employment period - application dismissed

• [1] On 30 January 2025, Mr Kim Alomes lodged an application with the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Repeta Plastics Pty Ltd (Repeta Plastics).

• [2] Pursuant to s.390 of the FW Act, the Commission may order a remedy in respect of a person if the Commission is satisfied that the person was protected from unfair dismissal at the time of being dismissed and the person has been unfairly dismissed.

• [3] In his application, Mr Alomes stated that his employment ended on 28 January 2025. Therefore, the application has been made within the 21-day period prescribed by s.394(2) of the FW Act.

• [4] On 10 February 2025, Repeta Plastics filed a Form F3 - Employer response to unfair dismissal application (response). The response claimed that Mr Alomes' employment does not meet the minimum employment period. This is a matter related to whether Mr Alomes is protected from unfair dismissal and as such, I am required to consider this before the merits of the application by s. 396(b) of the FW Act.

• [5] In summary, I have found that Mr Alomes was employed from 3 June 2024 to 28 January 2025 by a small business employer and therefore is not protected from unfair dismissal as he does not meet the minimum employment period prescribed by the FW Act. I have dismissed the application.

• [6] The matter was listed for directions on 6 March 2025. On 13 March 2025, Mr Alomes filed submissions and evidence. On 20 March 2025, Repeta Plastics filed submissions and evidence.

• [7] The matter was listed for a determinative conference on 25 March 2025. Mr Alomes represented himself at the determinative conference and Ms Dayana Dimic, one of the owners and managers of Repeta Plastics, represented Repeta Plastics. Ms Dimic and Mr Alomes both gave evidence at the determinative conference. At the determinative conference, I asked Repeta Plastics to provide further evidence about its labour hire arrangements. The parties were provided with an opportunity to make further submissions following receipt of this material, as well as in relation to company searches ordered by the Commission.

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; 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.

• [9] 'Minimum employment period' is defined in s. 383 of the FW Act which 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.

• [10] 'Small business employer' is defined in s.23 of the FW Act which provides:

(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.

(2) For the purpose of calculating the number of employees employed by the employer at a particular time:

(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and

(b) a casual employee is not to be counted unless, at that time, the employee is a regular casual employee of the employer.

(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.

(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee's employment, the employees that are to be counted include (subject to paragraph (2)(b)):

(a) the employee who is being dismissed or whose employment is being terminated; and

(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.

• [11] There is no dispute that Mr Alomes meets the requirements of s.382(b)(i) as his employment with Repeta Plastics was covered by the Waste Management Award 2020.[1]

• [12] In relation to s.382(a), Mr Alomes claimed that he completed a period of employment with Repeta Plastics of at least the minimum employment period. Mr Alomes relevantly submitted that he was employed for more than six months, from 3 June 2024 to 28 January 2025, and that Repeta Plastics was not a small business employer at the time of his dismissal.

• [13] Repeta Plastics claimed that Mr Alomes did not complete the minimum employment period because he was employed from 3 June 2024 to 28 January 2025, and Repeta Plastics was a small business employer at the time of Mr Alomes' dismissal. Repeta Plastics submitted that Mr Alomes has not completed a one year minimum employment period as required by s.383(b).

• [14] To determine whether Mr Alomes has completed the minimum employment period, I must first consider whether Repeta Plastics is a small business employer. If I conclude that Repeta Plastics is a small business employer, the one year minimum employment period provided by s.383(b) applies. If I conclude that Repeta Plastics is not a small business employer, the 6 month minimum employment period provided by s.383(a) applies.

• [15] Mr Alomes produced information from the website of Repeta Pty Ltd which stated:

Our offices are located in Sydney and we have a manufacturing plant located at 51-53 Ordish Road Dandenong South VIC along with a new manufacturing facility located at 280 East Bomen Road Bomen NSW 2650

• [16] The website also listed Darren O'Rafferty as the Bomen Plant Manager, Dayana Dimic as responsible for HR and payroll and Petar Dimic as Company Director.

• [17] Ms Dimic explained that Repeta Pty Ltd is her parents' company and Repeta Plastics was established more recently by Ms Dimic and her brother Mr Petar Dimic. A company search ordered by the Commission and provided to the parties showed that Mr Larry Dimic and Mrs Gordana Dimic were Directors of Repeta Pty Ltd from 30 May 1983 to 30 July 2018 (in the case of Gordana Dimic) and 22 October 2019 (in the case of Larry Dimic). Mr Petar Dimic was appointed Director and Secretary of Repeta Pty Ltd on 22 October 2019. Larry Dimic is the only shareholder of Repeta Pty Ltd. Previously shares were also held by Gordana Dimic.

• [18] A company search ordered by the Commission in relation to Repeta Plastics and provided to the parties showed that it was registered on 17 June 2021, that Petar Dimic and Man Sang Cheng are the current Directors and that Ms Dimic was a Director until 23 September 2022. The current shareholders are Ms Dimic, Petar Dimic and Man Sang Cheng.

• [19] Ms Dimic submitted that Repeta Pty Ltd is a separate and unrelated entity to Repeta Plastics and not an associated entity within the meaning of s.50AAA of the Corporations Act 2001. Ms Dimic submitted that any relationship between Repeta Pty Ltd and Repeta Plastics is commercial in nature and all transactions are at arm's length.

• [20] Repeta Plastics produced payroll records which showed that it had 10 employees at the time of Mr Alomes' dismissal. Repeta Plastics submitted that in addition to these 10 employees, it had two additional team members working on a casual and consulting basis, including Darren O'Rafferty, Bomen Plant Manager, bringing the total number of employees to 12. Repeta Plastics submitted that these employees were all based at its Bowen, New South Wales site.

• [21] Repeta Plastics submitted that all staff working at the Dandenong, Victoria site were engaged by a labour hire company and were not employees of Repeta Plastics. I asked Repeta Plastics to provide evidence of these arrangements, and it produced a labour hire agreement between Heads Base Pty Ltd and Repeta Plastics dated 6 November 2023 in relation to the supply of workers to the Dandenong site.

• [22] Ms Dimic explained that she operates the office of Repeta Plastics from her home address in Sydney and that all administrative, purchasing, sales, transport, and any other work

which may be required is performed by Ms Dimic and the other shareholders of Repeta Plastics and no remuneration, wages or other payment is provided for that work. Ms Dimic gave evidence that Repeta Plastics has no office staff and that she and Petar Dimic are not employees of Repeta Plastics.

• [23] Mr Alomes disputed that Repeta Plastics employed less than 15 employees at the time of his dismissal but did not submit any evidence which established that this was the case.

• [24] Based on the evidence provided by Repeta Plastics, including payroll records and the labour hire agreement between Heads Base Pty Ltd and Repeta Plastics, I find that Repeta Plastics employed 12 employees at the time of Mr Alomes' dismissal. Therefore, Repeta Plastics was a small business employer at the time of the dismissal.

• [25] There was no dispute between the parties that Mr Alomes was employed by Repeta Plastics from 3 June 2024 to 28 January 2025. As such, I find that the employment period was seven months and 25 days.

• [26] As Mr Alomes was employed by a small business employer and his employment period is less than 12 months, I find that Mr Alomes has not completed the minimum employment period under s.383(b). Consequently, Mr Alomes is not protected from unfair dismissal as he has not met the requirements of s. 382(a) of the FW Act.

• [27] Mr Alomes' application for an unfair dismissal remedy is therefore dismissed. I order accordingly.

[1] Form F3 - Employer response to unfair dismissal application, 3.2.

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