s 394 - Unfair dismissal

Application for an unfair dismissal remedy - whether applicant is a person protected from unfair dismissal - whether respondent is a small business - minimum employment period not met - application dismissed.

• [1] Mr Stuart Wills was employed by Top Group (WA) Pty Ltd from Saturday 1 June 2024 to Monday 28 April 2025, when he was dismissed due to poor performance. Mr Wills has made an unfair dismissal application to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth).

• [2] Top Group objects to Mr Wills' unfair dismissal application on the grounds that:

(a) Top Group employed less than 15 people at the time of Mr Wills' dismissal and is therefore a small business employer as per s 23 of the Act; and

(b) Mr Wills' has not served the 12-month minimum employment period for small business employers and is therefore not a person protected from unfair dismissal under s 382 of the Act.

• [3] I listed the matter for a case management conference on Monday 30 June 2025. Mr Wills did not attend the case management conference. I subsequently issued directions for the filing of material. Top Group complied with the directions; Mr Wills did not. To date, Mr Wills has not made any contact with my Chambers, despite being put on notice that I would be determining the matter based on the material before me.

• [4] Based on the uncontested evidence from Top Group, I found it appropriate to determine this matter on the papers.

• [5] Top Group submitted evidence of a payroll employee summary for the period of Monday 21 April 2025 to Monday 28 April 2025 that shows 18 employees, but with four employees leaving their employment on Thursday 3 April 2025, Tuesday 8 April 2025, Wednesday 9 April 2025 and Thursday 10 April 2025. This leaves 14 employees at the date of Mr Wills' dismissal, including Mr Wills. I accept this uncontested evidence. This means Top Group was a small business at the time of Mr Wills' dismissal.

• [6] As per Mr Wills' own Form F2, he worked for Top Group for approximately 10 months. He has therefore not served the relevant minimum employment period of 12 months and is not protected from unfair dismissal.

• [7] I order that Mr Wills' application be dismissed.

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