s.394 - Unfair dismissal

Application for an unfair dismissal remedy - applicant has not completed the minimum employment period - application dismissed

• [1] Mr Oscar Kingsford-Shooter has applied to the Commission for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). Under section 382 of the Act, a person is protected from unfair dismissal if, at the relevant time:
  • They have completed at least the minimum employment period; and
  • They are either covered by a modern award, employed under an enterprise agreement that applies to them or earn an annual income of less than the "high income threshold".

• [2] Section 383 of the Act defines the minimum employment period as 6 months, or in the case of small business employers, one year. A small business employer is one that has less than 15 employees. There is no dispute that Chemical Elixir Pty Ltd was a small business employer at the time of Mr Kingsford-Shooter's dismissal.

• [3] The question is whether Mr Kingsford-Shooter has completed at least the minimum employment period such that he is protected from unfair dismissal.

• [4] Mr Kingsford-Shooter was originally employed by Fresh Investment Pty Ltd (Fresh) from 18 April 2024 to 9 December 2024. On 10 December 2024, his employment transferred to Chemical Elixir Pty Ltd (Chemical Elixir) in connection with a transfer of business. He worked as a casual production worker from 10 December 2024 to 17 December 2024 before resigning. He was re‑employed on 10 January 2025 and dismissed on 5 February 2025 with immediate effect. The break between periods of employment from 17 December 2024 to 10 January 2025 does not appear to count as a period of continuous service. Even if the break did count, the outer limits of his total period of service with Chemical Elixir (including service with Fresh) would be less than 10 months. On either view, Mr Kingsford-Shooter's period of employment with Chemical Elixir Pty Ltd was less than one year.

• [5] It follows that Mr Kingsford-Shooter is not protected from unfair dismissal.

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