s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - whether applicant met minimum employment period - minimum employment period not met.

[1] Mr Siddarth (the Applicant) was employed as a driver with Remondis (the Respondent) from 17 March 2025 until 22 August 2025, when he was dismissed from his employment. The letter of termination from the Respondent to Mr Siddarth of 21 August 2025 says that he had "not been successful nor [are] you suitable for ongoing employment with Remondis. As a result, your employment will end effective immediately."

[2] Mr Siddarth filed his Form F2 claim for an unfair dismissal remedy on 23 August 2025. The Respondent filed their Form F3 Response objecting to the application on the basis that Mr Siddarth had not met the minimum employment period under the Fair Work Act 2009 (Cth) (the Act).

[3] The jurisdictional objection proceeded to hearing on 8 December 2025. Mr Siddarth represented himself and Ms Gorrey, Executive General Manager of People and Safety, represented the Respondent. Both Mr Siddarth and Ms Gorrey also gave evidence.

[4] Mr Siddarth submits that the period of time commencing on 19 September 2024, in which he was employed as a casual employee by a labour hire company, Ranstad, and placed at the Respondent's business, ought to be counted towards his period of employment such that he meets the minimum employment period.

[5] Section 382 of the Act sets out when a person is protected from unfair dismissal. Section 382(1) says that 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.' (emphasis added)

[6] Section 383 of the Act provides:

Section 383 - Meaning of minimum employment period

(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.

[7] There is no dispute that the Respondent is not a small business employer and the minimum employment period applicable in this case is 6 months.

[8] Section 384 of the Act defines a period of employment:

Section 384 - Period of employment

(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 as an employee.

(a) a period of service as a casual employee does not count towards the employee's period of employment unless:

(i) the employment as a casual employee was as a regular casual employee; 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. (emphasis added)

[9] Mr Siddarth argues that his period of employment as a casual, labour hire employee with Ranstad, commencing on 19 September 2024 and concluding on 21 August 2025 when he accepted direct employment from the Respondent, ought to be counted in the period of employment relevant to determining the minimum employment period.

• [10] In support of his case, Mr Siddarth provided a large number of screenshots of an email inbox showing the Respondent as the sender of numerous emails to him commencing on 16 October 2024. Mr Siddarth submitted that the emails showed that he was "directly commanded"[1] by the Respondent from at least 10 October 2024, when he was allocated his ongoing driving run by the Respondent. He says an email was sent to him each afternoon by the Respondent directing him in the work he was to perform the following day.

• [11] Mr Siddarth submitted that his period of employment with Ranstad should be considered as part of his overall employment period because, although he was employed first by Ranstad and then later employed by the Respondent, he was under the control of the Respondent for the period of his employment with Ranstad. Mr Siddarth submitted that the Respondent had used a "loophole" in the Act that allowed the Respondent to, in effect, employ employees for a length of time (in this case for 12 months), and "still have six months to kick them out."[2] He described the Respondent's arrangement to engage him in work via a labour hire employer, then later employ him directly and dismiss him within a minimum employment period, as a "flaw" in the Act that "should have been updated".[3] Mr Siddarth submitted: "we are living in 2025 and using all the latest technology but still relying on rules made in 2009."[4] Mr Siddarth implored me to "set an example for further employers not to exploit other employees."[5]

• [12] In evidence, Mr Siddarth accepted that Ranstad was his "contracted employer"[6] during the period commencing October 2024 until 16 March 2025 and that he had then accepted an offer of employment from the Respondent set out in a contract of employment that commenced on 17 March 2025 and was subject to a 6-month probationary period.[7] Mr Siddarth argued that the contract he signed with the Respondent did not set out that his previous employment with Ranstad would not be counted as employment with the Respondent and consequently, by implication that it therefore ought to be counted.

[13] The Respondent relied on the agreed fact that Mr Siddarth commenced direct employment with them on 17 March 2025 and was dismissed from employment on 22 August 2025 as the basis for their submission that Mr Siddarth did not meet the statutory minimum employment period of 6 months and is not a person protected from unfair dismissal. The Respondent rejects the assertion of the Applicant that his earlier period of service with Ranstad should be considered as employment that meets the definition of a period of continuous service under section 384 of the Act. The Respondent relied on the terms of the contract that set out a commencement date and probationary period with the Respondent in support of its case that Mr Siddarth had previously been employed by a different employer before commencing employment with them, less than 6 months prior to his dismissal. Further, the Respondent set out that there had been no transfer of employment that could impact the period of service.

[14] There is no assertion by either party, or facts in this case, to suggest there was a transfer of employment which could result in the earlier period of employment counting as service for the minimum employment period.

[15] I reject the argument of Mr Siddarth that because his contract of employment with the Respondent did not make clear that his earlier employment with Ranstad was excluded from his employment period that it was therefore, by implication, included. To the contrary, the lack of reference to any earlier period of employment strongly suggests that it is not included. Schedule 1 to the employment contract between Mr Siddarth and the Respondent makes clear that its commencement date was 17 March 2025.

[16] Contrary to the submission of Mr Siddarth that I ought to decide this case disregarding what he says are outdated provisions in the Act, I am bound to follow the Act in reaching my decision. The words in the relevant sections of the Act, extracted above, are clear. The period considered for the minimum employment period is a period of employment with the employer. In these circumstances there were two periods of employment with two different employers: the first with Ranstad and the second with the Respondent. The Applicant concedes that he had two different employers in consecutive periods of time. The employer at the time of dismissal was the Respondent. The relevant period of employment in this case is the period of service with the Respondent. It is plain that Mr Siddarth was employed by the Respondent for less than 6 months. His period of service with his former employer, Ranstad, does not count towards a period of continuous service with the employer who dismissed him from employment.

[17] Mr Siddarth was not an employee who had completed a period of employment with his employer that met the minimum employment period. Mr Siddarth is therefore not a person protected from unfair dismissal and his application must be dismissed.

• [18] An order dismissing the application will be published concurrently with this decision.[8]

C Gorrey for Remondis Australia Pty Ltd, the Respondent.

[4] Submissions of the Applicant of 15 November 2025.

[5] Audio recording of hearing at 33:25.

[8] PR796090.

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