s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - jurisdictional objection - minimum employment period - mandatory training - not to count as employment - did not meet minimum employment period - objection upheld - application dismissed.

On 21 January I conducted a Hearing in this matter at the conclusion of which I announced my decision that the application was dismissed. These reasons are an edited copy of my ex tempore reasons for that decision.

[1] This is an application by Mr Matthew Brian Crelley against Retro Traffic Pty Ltd. It is an application for an unfair dismissal remedy under s. 394 of the Fair Work Act 2009 (the Act). Section 390 of the Act provides that a remedy for unfair dismissal can only be awarded if a person is protected from unfair dismissal.

[2] Whether a person is protected from unfair dismissal is determined by section 382 of the Fair Work Act. The section states that a person is protected from unfair dismissal if they have completed the minimum employment period. The minimum employment period is defined as six months in s. 383 of the Act.

[3] There are two contests about whether Mr Crelley has satisfied the requirement of

serving the minimum employment period. The first turns on the question of when he commenced employment. He was dismissed on the 3 October 2025. The issue is whether he commenced employment six months prior to that date. The company states that Mr Crelley didn't commence employment until the 4 April 2025 when he signed a contract. Mr Crelley says that he was required to perform a training course by the respondent prior to that date. The training course involved induction training so that he could work on Ausgrid sites. It was the Ausgrid online induction Pegasus course, which Mr. Crowley says he did on 2 April 2025. If I consider the 2 April 2025 the commencement of his employment, then he would have served six months before he was dismissed. That's the first objection. However, I do not need to determine that issue because the second objection that is made is made out.

[4] That objection is to be determined in accordance with s 384(2) of the Act, which sets out when in the circumstances of casual employment, that employment counts towards the period of minimum employment. As Mr Crelley was a casual employee, that section does apply.

[5] The section says that a period of service as a casual employee does not count towards the employee's period of employment unless the employment as a casual employee was as a regular casual employee and that 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 systemic basis.

[6] In the material provided to me and the information provided to me by the company and Mr Crelley, and, in particular, Mr. Crelley 's evidence that he was working regularly for the company for the first three months but says that after the first three months he was no longer getting regular shifts. He says that the reason he wasn't getting regular shifts is that he believes the company took the view that he was a difficult employee because he was raising concerns about the work. Be that as it may, its agreed that the regular work dried up after three months. If the work was, to use the words of Mr. Crelley, "sparse and choppy" after that three-month period, applying the legislation and, in particular, the requirement at s 384(2)

that the employment as a casual employee was as a regular casual employee, is not met in these circumstances.

[7] In circumstances where that requirement is not met, I cannot find that Mr Crelley was a person protected from unfair dismissal in his employment with Retro Traffic and so the for the purpose of section 382, he was not a person protected from unfair dismissal which flows to section 390 which provides that a remedy for unfair dismissal cannot be awarded in those circumstances.

[8] Given my findings in relation to the nature of the employment not being a regular casual arrangement. I don't need to determine the first question as to the date on which the employment commenced on that basis that there was no regular casual employment for the full six month period.

[9] I must dismiss the application and I will do so. The application is dismissed.

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