Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - Minimum employment period jurisdictional objection - Jurisdictional objection dismissed - Application to proceed

• [1] On 9 April 2025, Mr Travis Mullan applied for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Cth) in relation to the termination of his employment by Local BG Pty Ltd.

• [2] Mr Mullan says that his employment began on 30 July 2024 and ended on 8 April 2025.

• [3] Local BG raised a jurisdictional objection to Mr Mullan's application. This was that Mr Mullan had not completed the minimum employment period.

• [4] Local BG raised 2 grounds
  1. First: it was a small business employer and so Mr Mullan had not completed one year of service at the time when he was given notice of his dismissal; and
  2. Second: the relevant period of employment started on 12 March 2025 and so even if it was not a small business employer, Mr Mullan had not completed 6 months period of employment when his employment ended on 8 April 2025.

• [5] This decision deals only with whether Mr Mullan has completed the minimum period of employment within the meaning of s 383 of the Act, in order to be a person protected from unfair dismissal within the meaning of section 382 of the Act.

• [6] I deal first with whether the employer is a small business employer.

• [7] Section 23(1) of the Act says that a national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.

• [8] Section 23(3) says that 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.

• [9] Section 23(4) provides that the employees that are to be counted include the employee being dismissed and any other employee of the employer who is also being dismissed. The particular time for the purposes of the minimum employment period is set out in section 383(a) as the earlier of the time when the person is given notice of their dismissal or immediately before the dismissal.

• [10] At a case management conference that I conducted on 21 May 2025, I drew the parties' attention to section 23(3).

• [11] The applicant provided ASIC searches showing a number of entities of which Mr Van Yzerndoorn was director and shareholder. Mr Van Yzerndoorn appropriately conceded that Local BG had associated entities of which he had control, and that together the associated entities employed more than 15 employees.

• [12] I find that the employer, Local BG, is not a small business employer within the meaning of s 23 of the Act, as there is at least one other associated entity and the total number of employees of the employer and its associated entities is more than 15.

• [13] The minimum employment period that Mr Mullan must have completed with Local BG is 6 months under s 383 of the Act.

• [14] There is no dispute that Mr Mullan was first employed with Local BG on 30 July 2024.

• [15] However, Local BG says that that employment was as a carpenter and it ended around the end of February 2025. It says that Mr Mullan then started a new employment contract as supervisor on 12 March 2025, and so his period of employment was less than one month at the time that he was given notice of his dismissal on 8 April 2025.

• [16] Section 384 of the Act says that:

(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.

• [17] Section 22 of the Act defines service and continuous service.

• [18] The general meaning is that a period of service is a period during which the employee is employed by the employer but does not include any period that is an excluded period, which is defined in subsection 2. Section 22(3) says that 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.

• [19] There is no issue here about whether there were periods of excluded service. The issue in dispute relates to whether, when Mr Mullan signed and started his new employment contract as a Supervisor, this broke his period of continuous service with Local BG.

• [20] Mr Van Yzerndoorn gave oral evidence at the determinative conference that he wished to have a "clean slate," and there was a mutual termination of Mr Mullan's employment as a carpenter. Mr Van Yzerndoon contends that Mr Mullan then re-commenced his employment as Supervisor. Mr Mullan did not agree that was what was discussed around end of February and beginning of March was a termination. Mr Mullan understood it to be that he was offered the role of supervisor, which he accepted by signing the contract on 12 March 2025.

• [21] There is no written evidence before me that the employer terminated Mr Mullan's employment before he signed the new contract, nor that Mr Mullan resigned. I accept Mr Mullan's evidence that he did not discuss that his employment would end when he accepted and signed the contract for the role of Supervisor.

• [22] Local BG contends that the employment ended, as they paid his accrued but untaken annual leave entitlements and his accrued RDOs. They also say that they paid out his wages and provided me with bank records showing a payment. Mr Mullan does not contest that the payments were made. He says he did not know what the payments were for or assumed Mr Van Yzerndoorn wanted to pay him out on the lower rate. He says he did not appreciate that his employment was being terminated at that stage.

• [23] I am of the view that Mr Mullan's period of employment started on 30 July 2024 and was not broken when he signed a new contract for the role of supervisor. Despite the employer paying him his accrued but untaken annual leave entitlements (which itself may be in contravention of the National Employment Standards), the employment relationship continued throughout that time.

• [24] As such, Mr Mullan has completed the minimum period of employment and is a person protected from unfair dismissal.

• [25] I will now conduct a case management conference and timetable this matter for hearing as to whether the employer's dismissal of Mr Mullan was harsh, unjust or unreasonable.

Ms M Verma of Regal Lawyers, with permission, on behalf of the Applicant

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