s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - whether minimum employment period met - whether the Respondent is a small business employer - Respondent employed less than 15 employees at the time of termination - minimum employment period not met - application dismissed.

• [1] On 13 March 2025, Mr Randall Taylor made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that his dismissal from APMG Corporate Solutions Pty Ltd (APMG or the Respondent) on 4 March 2025 was harsh, unjust or unreasonable. The Respondent denies these allegations and raises a jurisdictional objection on the grounds that Mr Taylor's employment does not meet the minimum employment period, and that the Respondent has complied with the Small Business Fair Dismissal Code.

• [2] The Respondent's position is that AMPG is a small business within the meaning of the FW Act, having only 10 employees at the time the Applicant was dismissed.

• [3] It is not in dispute that Mr Taylor commenced employment with the Respondent on or around 21 August 2024 and that his employment ceased by way of termination on 4 March 2025. Therefore, it is established that Mr Taylor was an employee of the Respondent for a period of approximately 6 months and 11 days. Importantly, a period beyond 6 months.

• [4] Section 382 of the FW Act provides a person is protected from unfair dismissal if, at the time of dismissal, they have completed a period of employment with their employer of a least the minimum employment period. Section 383 provides the minimum employment period is either 6 months, or if the employer is a small business employer, 12 months.

• [5] On the basis of the above, the Respondent's position is that Mr Talyor is not a person protected from unfair dismissal and that his application should be dismissed.

• [6] On 15 April 2025, directions were issued for the filing of submissions and evidence in relation to whether APMG was a small business within the meaning of FW Act. On 28 April 2025, a hearing was conducted via video to allow an examination of the evidence. I granted leave pursuant to s.596 of the FW Act for both parties to be represented in proceedings.

• [7] In advance of the proceedings, a digital court book (DCB) of all material filed and relied upon in proceedings was circulated to the parties. The DCB was accepted into evidence in its entirety at the commencement of the hearing.

• [8] Mr G. McKeown appeared for the Applicant and Mr T. Plummer for the Respondent.

• [9] This decision considers the jurisdictional question only. Considering all the evidence and submissions in the present circumstances, I am satisfied the Respondent is a small business within the meaning of the FW Act and that Mr Taylor is not a person protected from unfair dismissal. For the reasons set out below, this application is dismissed.

When can the Commission Order a Remedy for unfair dismissal?

• [10] Section 390 of the Act provides that the Commission may order remedy if:

(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the of being dismissed; and

(b) the Applicant has been unfairly dismissed.

• [11] Both limbs must be satisfied. Therefore, I am required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am so satisfied, next consider whether the Applicant has been unfairly dismissed.

When is a person protected from unfair dismissal?

• [12] Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) The person is an employee who has complete 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 that the high-income threshold.

• [13] Section 383 of the Act provides the minimum period of employment is:

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

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

(ii) immediately before the dismissal; or

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

• [14] Small business employer is defined in s.23 of the Act in the following terms:

(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.

• [15] The relevant time for this assessment in this matter is the time of the dismissal.

• [16] Section 12 of the Act states that an "associated entity" has a meaning given by section 50AA of the Corporations Act 2001 (the Corporations Act).

• [17] The Respondent provided written submissions and material to support it position. In addition, Mr Craig Billing (General Manager for the Respondent) provided a witness statement and gave sworn evidence in proceedings.

• [18] Mr Billing provided credible evidence to the Commission. Mr Billing submits in his role as General Manager he has direct oversight of the employment, termination and allocation of work to employees of the Respondent. In this capacity, his evidence was that:[1]

• On 4 March 2025 when he terminated Mr Taylor's employment, the Respondent had 10 employees.

• • That the two payroll records attached to his statement for the period of 5 March 2025 and 12 March 2025 show the total number of employees of the Respondent to be 10, and 9 (following Mr Taylor's termination).[2]

• • That the payroll records provided are the complete and accurate records of the total employees of the company, as indicated by the note on each page being page 1 of 1.[3]

• That the Respondent engaged several other contactors as painters and other trade professionals from time to time and on occasion asked that they would wear T-shirts carrying the Respondent's logo.

• That the company had at least 20 vehicles registered, which it used to perform different types of work for clients.

• That the company prepared and provided employees with an employment handbook as a best practice template.

• That Mr Farbod Mollaeinasrabadi was the principal and director of the Respondent and also the principal and director of another company named AMPG Painting Services.

• That AMPG Painting Services has a website it hasn't updated in 3 or more years. That it also has a small warehouse. That it is an old company used before AMPG was formed and started operation. And that it is only now used as a holding company, and for parking vehicles and storage.

• That APMG Painting Services is not a business that runs. That if someone were to call or email them, APMG Services would respond and deal with your request because it is not operating, has no employees and is now effectively AMPG Corporate Solutions Pty. Ltd. (the Respondent).

• [19] Mr Taylor provided sworn evidence to the Commission along with a series of supporting documents to support his position. Included in his material is:

• • A list of almost 20 names of people he believes to be employees of the Respondent.[4]

• • A 49-page APMG Services employee handbook.[5]

• • Extracts from AMPG Painting Services' LinkedIn profile, indicating it employees between 11-50 employees.[6]

• • A photo of 14 people, the majority of whom are wearing APMG clothing.[7]

• [20] Mr Taylor also provided a witness statement and gave sworn evidence to the Commission. His evidence is that "[b]ased on my knowledge and the Respondent's own estimate in the Form F2 (sic), AMPG Corporate Solutions Pty Ltd has between 15 and 49 employees."[8]

• [21] In submissions, the Applicant pressed that the onus is on the Respondent to satisfy the Commission that it has fewer than 15 employees for its objection to be allowed and that it has failed to do so on the evidence presented.

• [22] The basis of this submission threefold. First, the evidence the Respondent runs a business for 10 employees with 20 or more vehicles. Second, that the payroll evidence of the Respondent appears cropped and incomplete.

• [23] Finally, the evidence that there is a related entity of the Respondent that employees 11-50 employees. And that consistent with the related entity provisions of the Corporations Act, the Respondent's objection must fail. Supporting this position, the Respondent referred me to the decision of Commissioner Steele in Salagaras v Fingal Glen Pty Ltd (Salagaras).[9]

• [24] In proceedings, Mr Taylor conceded that his knowledge of the Respondent's employment practices and whether people he saw were employees of the Respondent was limited. His evidence is that when he did see people, up to 90% of the time they were in company t-shirts and were usually using company vehicles.

• [25] Mr Taylor's evidence is that he usually worked alone for the Respondent. That he worked across sites and jobs as required. That he would occasionally come across AMPG people or see them on Zoom meetings. He submitted that another source of information on who was "working" for APMG came from what he could see on the Tradify app that was used to allocate work to him and others.[10]

• [26] In addition, Mr Taylor accepted that as far as he was aware AMPG Corporate Services Pty Ltd was originally APMG Painting Services and that was how the company started. He accepted that he did not know if they were run separately, but that they "were all one...", that he would pick up stuff from the APMG Painting Services factory and work side by side with up to 4-6 painters on site.[11]

• [27] Further, accepting that he was not 100% sure if the people he saw were sub-contracted to APMG, but that he assumed they were.[12] And that the use of subcontractors is a common means of employment in the construction industry.[13]

• [28] Mr Taylor's evidence does not provide any convincing basis to conclude the Respondent was not a small business.

• [29] While I accept from Mr Taylor's perspective it was plausible for him to conclude this to be the case, this is not the basis for a finding for it to be so. The only evidence suggesting this to be the case, is the LinkedIn page of a related entity employing 11-50 people and Mr Billing's evidence that he had up to 20 vehicles registered for the business to use.

• [30] In contrast, Mr Billing's evidence was presented to the Commission as a consistent version of the facts. When tested, it remained consistent. He makes clear that at the time of Mr Taylor's termination, the Respondent employed 10 employees. That AMPG Painting Servies is an old business, while conceding it to be a related entity, with an old website that did not run and did not employ anyone. Further, that the business had 20 vehicles because it needed a variety to meet the needs of customers.

• [31] I accept this evidence and find Mr Billing's evidence a more accurate reflection of the size of the Respondent than that of Mr Taylor's.

• [32] Furthermore, Mr Billing's evidence about AMPG Painting Servies, and it being an old entity running effectively as the same business as the Respondent, is supported by Mr Taylor's own evidence.

• [33] With regards to any anomaly arising out of either the number of vehicles or why the Respondent had an extensive employee handbook, I find no anomaly exists and accept Mr Billing's explanation.

• [34] Similarly, in terms of the alleged 'cropped' or 'incomplete' payroll records. There is nothing in Mr Billing's evidence of these records themselves, being pages 1 of 1, to lead me to conclude they are not the accurate payroll reports of the Respondent at the time Mr Taylor was dismissed.

• [35] The final matter to consider is the importance of the decision in Salagaras referred to by Mr Taylor's representative. I accept the relevance of this decision on the significance of section 50AAA of the Corporations Act in determining a related entity. In the present case, Mr Billing's accepts Mr Farbod Mollaeinasrabadi to be director and principal of both APMG Painting Services and the Respondent.

• [36] I have also reviewed the ASIC records for both these entities and have found them to be consistent with what Mr Billing has told the Commission. On this basis, I am satisfied that APMG Painting Services is an associated entity of the Respondent within the meaning of the FW Act.

• [37] This evidence was not contested in proceedings. While I accept this to be the case, in the present circumstances, it does not follow that I accept the Respondent does not have a legitimate objection to Mr Taylor's application proceeding.

• [38] Unlike in Salagaras where there was an absence of evidence,[14] in the present case Mr Billing has provided sworn and convincing evidence of the number of employees of the Respondent being 10.

• [39] His evidence is that APMG Painting Services, which I also accept, does not employee anyone, is an old business and is effectively the same entity as the Respondent. Mr Taylor provided similar evidence of the connection between APMG Painting Services and the Respondent and that he was not aware of the employment practices of either APMG Painting Services or the Respondent.

• [40] In this regard, I accept and prefer the consistent evidence of Mr Billing that the total number of employees of APMG Painting Services and/or the Respondent was less than 15 at the time Mr Taylor was dismissed. This conclusion accounts for the potential of Mr Farbod Mollaeinasrabadi being an employee as well as a director of either entity.

• [41] Considering all the materials before me, I am satisfied that the Respondent was in fact a small business employer at the time the Applicant was dismissed. Consequently, as the Applicant was employed by the Respondent for a period of 6 months and 11 days, he does not meet the minimum employment period required to be protected from unfair dismissal. Therefore, the Respondent's jurisdictional objection is upheld.

• [42] Accordingly, the application is dismissed.

[1] See Transcript of Proceedings on 28 April 2025 at [PN28] - [PN190].

[2] Attachment A and B to Witness Statement of Craig John Billing, Court Book pages 123 - 124.

[4] Applicant's Outline of Argument: Objections, Section 3, Court Book pages 14 - 15.

[5] APMG Services Employee Handbook, Court Book pages 54 - 104.

[8] Applicant's Statement of Evidence at [5], Court Book page 114.

[9] [2011] FWA 1401.

[10] Transcript at [PN262] - [PN273].

[11] Transcript at [PN225] - [PN226], [PN260] - [PN261].

[12] Transcript at [PN202] - [PN276], [PN264] - [PN265].

[14] [2011] FWA 1401 at [18].

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