s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - Respondent is a small business employer - Applicant has not completed the minimum employment period

• [1] Ms Morabito (the applicant) has applied under s 394 of the Fair Work Act 2009 (Cth) alleging they were unfairly dismissed by Mediconnect Unit Trust trading as Mediconnect Consulting (the respondent). Mediconnect has objected to the application, alleging Ms Morabito has not completed the minimum employment period.

• [2] In order to be protected from unfair dismissal, an employee must have completed the minimum employment period. For a small business, the minimum employment period is one year. For all other businesses, it is 6 months.

• [3] There is no dispute that Ms Morabito's employment started on 9 December 2024 and ended on 29 September 2025. This is a period of 9 months and 20 days. If Ms Morabito's employer is not a small business employer, she has completed the minimum period of employment and is a person protected from unfair dismissal. However, if Ms Morabito's employer is a small business employer, then she has not completed the minimum period of employment, is not a person protected from unfair dismissal and her application must be dismissed.

• [4] A small business is defined in s 23 of the Act as an employer who employs fewer than 15 employees at a particular time. The total number of employees includes employees employed in associated entities (s 23(3)). The particular time in this matter is the earlier of the time when a person is given notice of their dismissal or immediately before the dismissal (s 383 of the Act).

• [5] In its Form F3, the respondent says that it employs 6 employees.

• [6] Ms Morabito asserted that the respondent had more than 6 employees because it operated another location and because there were subcontractors who also worked on the premises. She did not, however, have information on the number of employees at the other location.

• [7] In relation to subcontractors, they are not employees and would not be included within the number of employees to ascertain whether an employer is a small business employer within the meaning of s 23 of the Act.

• [8] On my request, the respondent provided me with a list of names of its employees in both locations, and payroll summaries. That information shows that the employer employed a total of 8 employees across both locations as at 29 September 2025.

• [9] Based on the above information, the respondent is a small business employer, and Ms Morabito has not completed the minimum employment period. Ms Morabito is not a person protected from unfair dismissal and so I must dismiss her application.

• [10] There is also the matter that Ms Morabito filed her application on the same day that her dismissal took effect. Section 394(1) requires that an application is validly made if it is made within 21 days after a dismissal took effect or such further time as the Commission may allow in accordance with s 394(3). In order for Ms Morabito's application to be made in accordance with s394(1), the earliest date that she could have made it was 30 September 2025, being the day after he dismissal took effect. The Full Bench in Mihajlovic v Lifeline Macarthur [2014] FWCFB 1070 at [42] said that a premature application is an irregularity in the manner in which the application is made, and s 586 of the Act provides the Commission with the discretionary power to waive the irregularity. For the sake of completeness, I exercise the discretion to waive the irregularity in the manner in which Ms Morabito's application was made.

• [11] For the above reasons, I order that the application for an unfair dismissal remedy under matter number U2025/15646 filed by Ms Jayda Morabito on 29 September 2025 be dismissed.

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