s.394 - Unfair dismissal

Application for an unfair dismissal remedy - jurisdictional objection - minimum employment period - jurisdictional objection dismissed

[1] Ms Stacie Bakshi (the Applicant) made an application to the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) stating that she was unfairly dismissed from her employment with Cosmetique Cosmetic Clinics (Services) Pty Ltd (the Respondent).

[2] Section 396 of the Act requires satisfaction of four matters before considering the merits. The Respondent raised a jurisdictional objection that the Respondent is a small business and the Applicant was not a person protected from unfair dismissal as she did not meet the minimum employment period of twelve months under s.382 and s.383 of the Act.

[3] Directions were set and the matter was listed for hearing. In the directions conference on 26 November 2025, I agreed to confine the directions to first address the threshold minimum employment period objection (at the request of the Respondent).

[4] The Respondent's submissions in relation to the jurisdictional objection were due on 8 December 2025. No submissions were received. On 15 December 2025, the Respondent was granted discretionary extension until 22 December 2025 to provide any submissions in relation to the jurisdictional objection. This was not provided.

[5] No submissions or evidence was received from the Respondent regarding its claim of being a small business. The Respondent was asked by my Chambers to confirm if it still wished to press the jurisdictional objection.

[6] Under s.399 of the Act, in the absence of any submissions from the Respondent regarding the jurisdictional objection, I determined it would be appropriate in the interests of efficiency to vacate the hearing and determine the jurisdictional objection on the papers.

"382 When a person is protected from unfair dismissal

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; and

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold."

(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, the employee is a regular casual employee of the employer.

(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."

[9] The evidentiary onus falls on the Respondent to prove that it is a small business.

[10] The Respondent stated in the Form F3 that it has 14 employees. The Respondent also provided a payroll summary to the Commission at the time of lodging the Form F3. It appears the Respondent has not counted the employees of any associated entities, though. Under s.23(3) of the Act, associated entities are taken to be one entity for the purposes of counting the number of employees of a business.

[11] The Applicant's representative referred me to a recent decision of Deputy President O'Keeffe involving the same Respondent, Aljobouri v Cosmetique Cosmetic Clinics (Services) Pty Ltd [2025] FWC 2987. Deputy President O'Keeffe stated in that decision:

[7] With respect to the issue of unable to represent itself, again there is an assumption that parties will represent themselves. The Commission regularly deals with unrepresented parties from all manner of circumstances and is capable of conducting its processes in such a way as to recognise the issues faced by parties with limited experience. The Respondent - according to its website - maintains a number of clinics throughout each of the mainland states of Australia and has expanded its operations to include offices in Perth, Sydney and the Philippines. I thus rejected the submission that there is essentially no-one in the Company who could provide adequate representation in the Commission.

[11] In this matter, the Applicant had an employment relationship as General Manager

throughout the entirety of her engagement which began in November 2021. The CA commenced on 11 November 2023. With both of the Applicant's engagements having ended on 6 May 2025, this means that the CA operated for 289 days pre- 26 August 2024 and 253 days post- 26 August 2024. Therefore, in assessing the CA I find that - given the Respondent is not a small business employer - the CA has existed for a period in excess of the minimum employment period required to make an unfair dismissal claim.

[12] Deputy President O'Keeffe's findings are helpful. They are not, however, in my view determinative, as it appears the fact of whether the Respondent was a small business was not in issue in the Deputy President's matter.

[13] I requested an ASIC Search of the Respondent to inform myself. That ASIC Search shows that the sole shareholder of the Respondent is a public company, Stormeur Ltd. A review of the public prospectus for Stormeur Ltd indicates that the company spent between $3 million and $5 million in recent years on payments to suppliers and employees. Further, the Respondent's website indicates that the corporate group has 20 locations in five states. Given all the companies which Stormeur Ltd owns and controls would be associated entities within the meaning of s.50AAA of the Corporations Act 2001 (Cth), I consider it more likely than not that the Respondent is not a small business.

[14] I find that the minimum employment period objection is not made out. The Applicant commenced employment on 19 February 2025 and the dismissal took effect on 12 September 2025. As this is a period of employment of more than six months, the Applicant is eligible to make an unfair dismissal claim.

[15] The jurisdictional objection is dismissed. I Order accordingly.

[16] My conclusion that the Respondent is not a small business employer also means that the Small Business Fair Dismissal Code has no application. Accordingly, my chambers will send directions for a hearing to determine if the dismissal was harsh, unjust or unreasonable. If the Respondent does not attend the hearing, the matter will be determined in the Respondent's absence under s.600 of the Act.

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