Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - jurisdictional objection: minimum employment period not met - the Applicant completed less than 6 months of employment - minimum employment period not met - application dismissed.

• [1] Mrs Victoria Tauafao (the Applicant) made an application seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). Mrs Tauafao lodged her application against Dynamic Community Care Pty Ltd (the Respondent) on 18 June 2025. The Applicant's employment was terminated on 28 May 2025. The application was allocated to my Chambers on 4 September 2025.

• [2] The Respondent in their Form F3 Employer response form objected to the Applicant's application on the basis that the Applicant had not met the minimum employment period of 6 months. The Applicant submitted that she had met the minimum employment. It was necessary in the first instance to determine the jurisdictional objection. This Decision deals with this issue only.

• [3] Directions were set for the provision of submissions and evidence on the jurisdictional objection and the Determinative Conference was listed for 24 September 2025. The Directions included the relevant legislation for the consideration of this matter as set out in ss. 382, 383 and 384 of the Act as follows:

"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

(b) one or more of the following apply:

(i) a modern award covers the person;

(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."

"383 Meaning of minimum employment period

(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;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer - one year ending at that time."

"384 Period of employment

(1) An employee's period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(2) However:

(a) a period of service as a casual employee does not count towards the employee's period of employment unless:

(i) the employment as a casual employee was as a regular casual employee; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(b) if:

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee's period of employment with the new employer."

• [4] At the time of lodgement, the Applicant was represented by a paid agent. However, before the Determinative Conference, Chambers received a Form F54 from the paid agent notifying the Commission that the representative was ceasing to act.

• [5] At the Determinative Conference the Applicant was self-represented. The Respondent was represented by their employees Ms Tanya Curtin, Executive Manager of People & Culture, and Ms Melissa Bebbington, Chief Legal & Compliance Officer.

• [6] At the Determinative Conference, oral submissions were made in relation to the Respondent's jurisdictional objection in addition to the previously filed material by both parties. After hearing the submissions and considering the filed material, it was explained at the Determinative Conference that the jurisdictional objection would be upheld and the reasons for this, were raised as set out below.

• [7] The Parties after hearing the determination on the jurisdictional objection, then agreed to have discussions on the matter to reach a resolution. It was set out that a written Decision on the jurisdictional objection reflecting the determination conveyed would be provided. An Agreement was reached arising from the separate discussions. However, following the Determinative Conference, the Applicant resiled from the settlement terms and accordingly as advised, the jurisdictional determination as set out is provided.

• [8] It is not in dispute in this matter, that the Employer is not a "small business employer" (as per s.23 of the Act) for the purpose of s.383(b) of the Act as set out above. Consequently, in order to be a person protected from unfair dismissal, the Applicant must meet the minimum employment period of 6 months of employment with the Respondent in accordance with s.383(a) of the Act.

• [9] The Applicant submitted that her employment was longer than 6 months and she submitted during the Determinative Conference, that on 17 October 2024, she was sent an offer of employment from the Respondent. She stated that the Respondent indicated that they would get back to her in around 48 hours, but it was another 2 weeks or so after that in terms of confirming the start of the employment. She stated that she was meant to start in November 2024, however there was a delay in the "onboarding" and as such she did not start at this time. The Respondent acknowledged that there was an anticipated commencement date of 11 November 2024 however the required pre-conditions were not met until 27 November 2024.

• [10] The Applicant's Employment Agreement with the Respondent is dated 4 December 2024 and the commencement of the Applicant's paid employment was 2 December 2024 (being the first date of the induction). Her first shift after the induction was 2 days later, on 4 December 2024. The Second of December 2024 is the date used by the Employer as the Applicant's start date in their Form F2. The Applicant's casual employment was terminated on 28 May 2025.

• [11] The Applicant submitted that she started her employment in October 2024, but she conceded during the Determinative Conference that her employment actually began on 2 December 2024. It was submitted by the Employer, that on those dates the Applicant would not meet the required minimum employment period.

• [12] The commencement date for an employee's employment was considered in MacNeil v The Trustee for the ARC Unit Trust[1], as follows:

"[41] In Corner v SkyCity Adelaide Pty Ltd, a Full Bench of Fair Work Australia held that the period of employment commences when the employee first attends for work.

[42] It is not uncommon for a person to enter into an agreement with an employer to commence employment on a particular date in the future. Although in such cases the contract of employment is made at the (earlier) time when the parties enter into the agreement, the employment relationship does not commence until the employee starts work. This is when the employee commences their service with their employer, which is the starting point of the employee's 'period of employment' within the meaning of s 384(1) of the Act." (footnote omitted) (emphasis added)

• [13] The Respondent referred to the Decision of Grief v Penguin Composites Pty Ltd (Grief)[2] as consideration for concluding that the pre-employment activities do not form part of the employment period as the actual employment had not yet commenced. In Grief, the Applicant conducted unpaid self-directed learning deemed as 'the Second Period':

"[36] The Second Period Mr Grief seeks to rely on to satisfy the minimum employment period under section 383(a) of the Act is an unpaid period from mid-March 2022 to September 2022 (Second Period). During the Second Period Mr Grief conducted research to advance his own professional development and to gain his own intellectual property. Mr Grief produced reports he had written that he sought to rely on as evidence of an ongoing employment relationship. Mr Grief's oral evidence was that he had produced the reports at his own initiative as part of the development of his own capabilities and that the reports were not produced at the direction of Penguin Composites. Further, Mr Grief had at no stage provided the reports to Penguin Composites. Mr Grief did not receive any monetary compensation. Mr Grief's evidence outlined his desire to develop his capabilities which informed his decision to not be engaged as an employee during the Second Period. In his "Contract statement" dated 25 June 2020, Mr Grief states that he has been working independently to develop his capabilities and sought to negotiate terms of an employment contract for future employment.

[37] The evidence before me does not support a finding that for the Second Period Mr Grief was a national systems employee in s far as he was employed by a national systems employer (as described in s.14 of the Act). Therefore, the Second Period cannot be relied on to establish that Mr Grief has met the minimum employment period under section 383(a) of the Act."

• [14] The role of "pre-conditions" of employment was discussed in Dufall v Leighton Contractors Pty Ltd (Dufall):[3]

"[23] Here it is patently clear that the Applicant was offered a contract of employment for him to commence employment at a later date. The commencement date was to be 18 January 2013 but actually occurred on 4 or 5 February 2013 for a number of reasons, including that the Applicant could not undertake the compulsory Induction and other training before the end of January 2013. The sequence of events is a common and I suggest unavoidable approach to engaging employees for remote sites and projects. In practice contracts are entered into with persons who then become employees once various pre-conditions to employment are fulfilled and employees then at a convenient date then commence employment and start work." (emphasis added)

• [15] The Applicant was required to complete certain employment pre-conditions before she could commence her employment with the Respondent. She did so on 27 November 2024. However, the Applicant did not commence her employment with the Respondent until 2 December 2024 when it was a "convenient time" for the Parties as per Dufall.

• [16] The Applicant's employment commenced on 2 December 2024 and was terminated on 28 May 2025. This period is therefore less than the required 6 months and accordingly does not meet the minimum period of employment.

• [17] In terms of the circumstances of this matter as set out, the Applicant's employment period does not meet the mandatory, statutory minimum employment period of 6 months. Accordingly, the Respondent's jurisdictional objection is upheld and the Applicant's s.394 application is dismissed pursuant to s.382 of the Act.

[1] [2025] FWC 425.

[2] [2023] FWC 1362.

[3] [2024] FWC 2817.

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