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[2026] FWC 703
General information, not legal advice.
Fair Work Commission
2026-03-03
Original judgment source is linked above.
s 394 - Unfair dismissal
Application for an unfair dismissal remedy - minimum employment period
[1] On 15 December 2025, Nicola Kelly (the Applicant), a former employee of Crown Holistic Dental Pty Ltd (the Respondent), made an application to the Fair Work Commission for a remedy in respect of her dismissal under s 394 of the Fair Work Act 2009 (Cth) (the Act). The Respondent raised jurisdictional objections to the unfair dismissal application on the bases that the Applicant had not met the minimum employment period and therefore was not protected from unfair dismissal, and even if the Applicant had met the minimum employment period, the Respondent had complied with the Small Business Fair Dismissal Code (Code) when dismissing the Applicant.
[2] This decision addresses the first objection that the Applicant had not met the minimum employment period.
[4] Briefly stated, I am satisfied that the Respondent was a small business employer at the relevant time, that the minimum employment period was one year, and that the Applicant had not completed the required minimum employment period. It follows that the Respondent's jurisdictional objection is upheld. In the circumstances, it has proved unnecessary to address the Respondent's jurisdictional objection concerning the Code. My detailed reasons follow.
[5] The parties were self-represented. It was therefore difficult to extract relevant evidence to assist in determining the issues. The Applicant gave evidence in support of her case and Erika Jackson, Practice Manager of the Respondent (Jackson), gave evidence in support of the Respondent's case. Whilst both parties had filed multiple witness statements neither had called those witnesses to give evidence and I therefore declined to admit those witness statements into evidence, noting that the witness statements filed by the Applicant had, in any event, only addressed the merits of the application and not the minimum employment period issue. The Respondent's evidence was unchallenged, with the exception of the employment status of Jacob Carnevale, to which I will refer shortly.
[6] The Applicant asserted that there were nineteen persons working at the Respondent's premises when she was employed by the Respondent. It is unclear from the Applicant's evidence whether the workers were working for the Respondent at the time of her dismissal. At hearing, the Applicant conceded that she was unaware of the status of the workers in respect of their employment and offered no further evidence in support of her case on this issue. The Applicant's focus, notwithstanding the directions issued, was predominantly on the merits. The workers were listed as follows:
[7] The Applicant did not identify the surnames of the persons working at the Respondent's premises.
[8] The Respondent relied in part on a letter from its accountant, Inspiration Accounting & Tax, dated 12 February 2026, that asserted that as of 16 November 2025 and 30 November 2025 the Respondent had ten permanent employees and three 'ad hoc' casual employees. However, those figures were qualified with a note stating that 'the three casual employees have differing hours each period, with four total casual employees. Two are no longer on the employee list.'.
[9] Jackson, who had held the position of Practice Manager since 30 September 2025, gave evidence at hearing that as of 28 November 2025, the Respondent had ten permanent employees and three casual employees.
[10] From the Respondent's materials, it was apparent that the Respondent held the view that 'Tisa, Ghassan, Karthick, Jorden, and Kayne' were not employees but were in fact sole traders or ran their own incorporated companies.
[11] Regarding Dr Ghassan Hamid (Hamid), the documentary evidence of the Respondent showed that The J to K Carnevale Family Trust T/A Crown Holistic Dental (ACN 643 627 990) had engaged Hamid on 14 August 2025 as an independent contractor to provide general dental services under a Service Facility Agreement. There is no evidence before me to impugn the Service Facility Agreement with the exception that whilst signed by the Respondent, it had not been signed by Hamid.
[12] Regarding Dr Jordenne Desmond (Desmond), the documentary evidence of the Respondent showed a remittance advice that Desmond had an ABN 28 228 866 720 and was paid in accordance with a tax invoice. There is no evidence before me to suggest that the payment to Desmond of 'Gross Patient Billings Collected' less 'Lab fees paid by Practice' and the deduction of a 'Facility Fee Amount' was in some way falsified or an invention.
[13] Regarding Dr Karthik Lakkaraju (Lakkaraju), the documentary evidence of the Respondent showed a remittance advice that Lakkaraju had an ABN 94 758 938 657 and was paid in accordance with a tax invoice. There is no evidence before me to suggest that the payment to Lakkaraju of 'Gross Patient Billings Collected' less 'Lab fees paid by Practice' and the deduction of a 'Facility Fee Amount' was in some way falsified or an invention.
[14] Regarding Kayne Carnevale, the documentary evidence of the Respondent showed a remittance advice that Kayne Carnevale had an ABN 60 197 896 184 and was paid in accordance with a tax invoice. There is no evidence before me to suggest that the payment to Kayne Carnevale of 'Gross Patient Billings Collected' less 'Lab fees paid by Practice' and the deduction of a 'Facility Fee Amount' was in some way falsified or an invention.
[15] Regarding Dr Tisa Kolarov (Kolarov), the documentary evidence of the Respondent showed a remittance advice that Kolarov had an ABN 75 192 660 471 and was paid in accordance with a tax invoice. There is no evidence before me to suggest that the payment to Kolarov of 'Gross Patient Billings Collected' less 'Lab fees paid by Practice' and the deduction of a 'Facility Fee Amount' was in some way falsified or an invention.
[16] Regarding Dr Saroop Samra (Samra), the documentary evidence of the Respondent showed a remittance advice that Samra had an ABN 82 972 545 685 and was paid in accordance with a tax invoice. There is no evidence before me to suggest that the payment to Samra of 'Gross Patient Billings Collected' less 'Lab fees paid by Practice' and the deduction of a 'Facility Fee Amount' was in some way falsified or an invention. Furthermore, the Respondent's evidence extended to a signed Service Provider Agreement dated 27 March 2025 between Samra, an independent contractor under the Service Provider Agreement, and The J to K Carnevale Family Trust T/A Crown Holistic Dental (ACN 643 627 990) for the services of General Dental (Children focused). It is noted that Samra did not appear to be listed as a worker by the Applicant.
[17] The Respondent's payroll summary for the period 17 November 2025 to 30 November 2025 shows the following employees listed in column two. Column one lists those workers identified by the Applicant as employees, column three are those employees that the Respondent states are contractors, and column four are those employees who have been identified by the Respondent as casual employees.
[18] In cross examination, the Applicant proposed to the Respondent that 'Jake', namely, Jacob Carnevale was an employee as of September, October and November (presumedly 2025). Jackson responded that Jacob Carnevale was an employee up until August 2025, noting that his employment ended due to the fact he had a bad hand injury and was no longer able to work in the practice. The Applicant challenged this evidence proposing again that Jacob Carnevale had worked with her in the 'Lab'. According to Jackson, Jacob Carnevale was allowed to work as a family member in the Lab to assist the Applicant, who according to Jackson, was not coping. Jackson expressed that Jacob Carnevale was not an employee and was not paid as of the end of August 2025 under the payroll system (evidence of which was provided).
[19] I questioned Jackson about the status of 'Lee', who Jackson clarified was Lee Carnevale, a Director of the Respondent, who was paid in dividends. Jackson explained that Lee Carnevale saw patients about their dentures, much like the other contractors (who were dentists). Lee Carnevale was not on the pay roll and according to Jackson, superannuation contributions were not made for him.
[20] Jackson's evidence was that 'Saskia' was not employed or otherwise working for the Respondent at the relevant time.
(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.
[22] The meaning of the term 'small business employer' is found in s 23 of the Act:
(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, he or she has been employed by the employer on a regular and systematic basis.
(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.
[23] An associated entity for the purposes of s 23(3) (by virtue of s 12 of the Act) has the meaning given by s 50AAA of the Corporations Act 2001 (Cth) ('Corporations Act').
[24] It is not the case that the parties pressed that there was a 'related entity' as that term is understood in accordance with s 50AAA(2) of the Corporations Act or that the count of employees for the purpose of s 23 of the Act, should include employees of a related entity.
[26] As outlined at Part 2 of this decision, Jackson elucidated who was working for the Respondent at the time that the Applicant was notified of her dismissal drawing upon the Respondent's business records. I consider that Jackson provided a forthright and honest account of the state of the Respondent's affairs as she understood them to be at the relevant time.
[27] Based on the evidence provided, I am not persuaded that Lee Carnevale was an employee of the Respondent, given that the Respondent had a Practice Manager and the services provided by Lee Carnevale did not extend to the day to day running of the business but were confined to the provision of dentistry services akin to contractors and he was paid by way of dividend.
[28] In relation to the contractors named by the Respondent, namely, Hamid, Desmond, Lakkaraju, Kayne Carnevale, and Kolarov, based on the evidence before me, I find that they were independent contractors.
[29] However, on balance, I am not similarly persuaded, that Jacob Carnevale was an independent contractor, was on a vocational placement, or that he was a volunteer. The evidence before me is insufficient to make out a case, as advanced by the Respondent, that Jacob Carnevale was a volunteer. The evidence of Jackson was that Jacob Carnevale had been requested by the Respondent (whether through one of its employees or directors) to assist in the Lab. Whilst Jacob Carnevale was a family member, presumedly of the owners or directors of the Respondent, and performed his work absent remuneration, on the face of it, it would appear that he engaged in unpaid work pursuant to an employment relationship. It is noted that the Respondent asserted that the employment relationship had ended in August 2025, but that Jacob Carnevale had worked in the lab subsequent to that date.
[30] Considering the totality of the evidence and for the purpose of s 23 of the Act, I find that at the time the Applicant was dismissed, there were fourteen employees (inclusive of Jacob Carnevale). By reference to the Respondent's business records, I find that 'Saskia' was not an employee at the relevant time. It therefore follows that the Respondent was a small business employer as that term is understood in s 23 of the Act. As to whether the three employees who were purported to be employed on a casual basis, were casual employees, as that term is understood by reference to s 15A of the Act, I consider that there is insufficient evidence for me to draw that finding and have therefore included them in the cohort.
[1] Fair Work Act 2009 (Cth) (Act) s 23.
[5] See van Dreven v Safety Xpress Unit Trust [2017] FWC 4893, [14].
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Nicola Kelly
Crown Holistic Dental Pty Ltd [2026] FWC 703