Abhishek Wagle v D & C Lucky Fresh Pty Ltd [2024] FWC 58

1 Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Abhishek Wagle v D & C Lucky Fresh Pty Ltd (U2023/9245) DEPUTY PRESIDENT CROSS SYDNEY, 10 JANUARY 2024 Application for an unfair dismissal remedy [1] On 23 September 2023, Mr Abhishek Wagle (the Applicant) lodged an application in the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) (the Application), against D & C Lucky Fresh Pty Ltd (the Respondent). [2] The Applicant commenced employment with the Respondent on 11 July 2022. The Applicant claimed to have been dismissed by the Respondent on 2 September 2023. [3] In the hearing of the matter the Applicant represented himself. The Respondent was represented by Mr Wei Guo, the owner of the Respondent. The Respondent is a fruit and vegetable shop. The Respondent raised a jurisdictional objection to the Application, being that the Applicant was not dismissed. [4] On 13 November 2023, directions were issued to program the manner in which the Application was to proceed to hearing (the Directions). The parties complied with the Directions. In particular: (a) On 27 November 2023, the Applicant filed an Applicant’s Outline of Submissions; (b) On 11 December 2023, the Respondent filed an Outline of Submissions; and (c) The Applicant filed Submissions in Reply on 14 December 2023. [5] The Hearing of the Application occurred on 18 December 2023, by way of a Determinative Conference (the Hearing) with the consent of the parties.1 The materials filed by the parties were admitted as evidence, and Applicant and Mr Guo were subject to questioning by the Commission. Background Facts [2024] FWC 58 DECISION -- 1 of 20 -- [2024] FWC 58 2 [6] The Applicant commenced working for the Respondent on 11 July 2022. There is no dispute that the Respondent is a small business employer as defined in the Act.2 [7] The Applicant ceased working for the Respondent for a period of approximately 8 weeks when he returned to Nepal for his wedding. Upon his return to Sydney the Applicant recommenced employment with the Respondent. The gap in service was approximately 8 weeks commencing around 26 September 2023. [8] The Applicant went home from work on Saturday 2 September 2023 due to a headache. He informed Mr Guo, who let him go home. [9] Later on 2 September 2023, there was a text message exchange between the Applicant and Mr Guo, as follows: The Applicant: I wont be able to come tomorrow.. Ive still got headache..sorry.. Mr Guo: OK The Applicant: Would you mind sending wages by bank transfer please? I need it desperately.. Not just 700, I need it total of two weeks please..cause I wont be able to come there and get cash Mr Guo: I cant do it now, I will try to work it out tomorrow The Applicant: That’s fine..btw I was expecting tomorrow thanks Mr Guo: Are you okay? The Applicant: I am good just a lil bit headpain..thank you [10] After some messages regarding days worked, on 3 September 2023, there was a text message exchange between the Applicant and Mr Guo commencing at 11.39am on 4 September 2023 as follows: -- 2 of 20 -- [2024 FWC 58 3 Mr Guo: Please let me know one day before you come to collect the money and confirm the time with me as well. Thanks The Applicant: You can send me by bank transfer with the payslip.. I wont be unable to come there . Thanks Mr Guo: I can’t as everyone is on book has to sign up the end of employment form officially. Speaking of payslip, plz let me know the period. I can work it out on Wednesday. The Applicant: You can send me by email or by mail Or if you want the hardcopy you can send it to my mailbox. whichever you want. Mr Guo: Are you okay? I don’t know why you leave the job so urgently but I respect that. So please follow our procedure to finalise the remaining, thanks Email is fine Which period payslip do you need? The Applicant: Payslips I prefer, from the day I start working..if you can just send me of last week..and yes money that you hold Thanks [In Reply to the message Are you okay? I don’t know why you leave the job so urgently but I respect that. So please follow our procedure to finalise the remaining, thanks, the Applicant stated] Thanks I appreciate that Mr Guo: So payslip for last 2 months is okay? Not possible to get all the payslip. The Applicant: If you cant that’s fine..send me your termination letter..i will sign and give you instantly.. -- 3 of 20 -- [2024] FWC 58 4 Mr Guo: Okay first I have to confirm… [CUTS OFF] [11] Apparently later on 4 September 2023, further text messages were exchanged as follows: Mr Guo: Okay firstly I have to confirm with you that the money you should get is: $940 (the mount we hold for the beginning) $1760.91 (6 days plus 8.5 hours for your last shift) Total is $2680.91 After deducting tax ($534.00), you will receive $2166.91 After you confirm, I will send you a letter or you can text me here that you confirm the total amount and you wish to terminate the job instantly. Thanks Mr Guo: Sorry forgot transferee $700 already to you on 2nd Sep so minus $700. Plz confirm the amount The Applicant: Can you please send me details of first week payment please? [12] On about 5 September 2023, the Applicant agitated a claim with the Fair Work Ombudsman (the FWO), and the Respondent received a telephone call from the FWO on that date. Neither the substance nor progress of that claim was clearly articulated by either party. Issues for Determination [13] There are two jurisdictional issues that arise in this matter. They are: (a) Whether the Applicant was dismissed; and (b) Whether the Applicant served the minimum employment period. (a) Dismissal [14] In the Form F3 Employer response to unfair dismissal application, the Respondent articulated the factual basis of its objection as follows: -- 4 of 20 -- [2024 FWC 58 5 The applicant has worked for us nearly one year. We trusted him and even gave the shop’s key to him. On 2nd Sep 2023, he just told me he got headache and never showed up since then. I called him and would like to figure out what happened to him as his reaction is quite different as he used to be. Over the phone, I asked if he is in the trouble and if he is coming back to work as usual. He said he is not sure and wouldn’t come back to work anymore. He also didn’t want to talk too much over the phone. Then, I let him to come back to the shop and talk face to face, wish to provide help if he is in trouble. However, he didn’t show up since then and let the other worker to bring the key back for him to me. [15] The Applicant, however, claimed he was effectively terminated in a telephone call at 5.57pm on 3 September 2023. In his submission, the Applicant provided: I believe the dismissal was happened over the phone on September 3 ,2023 at 5:57 P.M. while I was enquiring my rights about my payslips which he provided to me only one time throughout the whole year, change of entitlements without informing me, super he just paid 1 of tenth , some of my wages he holded since day 1 and also my PayG withholding tax that he never paid and never included to ATO. ….. While we both were in phone call on September 3, 2023 , I also requested him to pay my last week wages in my bank account but he did not listen to me and forced me to come on next day September 4,2023 ignoring the fact that I was on a sick leave since September 2,2023 and I did reminded him that I could not come cause I am not in condition to come. In response he told that I have to meet him tomorrow (September 4,2023), to collect my wages and also he added that if i don’t come tomorrow he is going to assume that I got job somewhere else and it’s my own interest not to come at work . On 4th of September , I could not be present cause I was sick .Then, I received a text message at 11:39 A.M from him to collect cash note at any day. Again, I requested him that I can’t come instead transfer me at my bank account with the payslip. But then he replied that I have to sign the end of employment to collect the cash. At this stage I was confirmed that I was terminated by my employer. [16] In the Hearing, the parties’ various positions were examined. That examination included the following:3 THE DEPUTY PRESIDENT: My associate will provide you but I'll look at them later. Now, if you can go to page 28, Mr Guo. You were asked by Mr Guo, 'Are you okay'? -- 5 of 20 -- [2024] FWC 58 6 MR WAGLE: Yes, because I was not in (indistinct) to leave because I was just having a headache and he knew that I took off – I went home at 3 pm on that day because I was – I had a headache so I went home and then asked him to pay my wages tomorrow, because tomorrow means Sunday. Sunday was payment day, that's always – that's usual. So I went home and asked him to please forward all my pay slips and money that you owe and then he said – and he said, 'I will do it but Wednesday'. He even said, 'Are you okay', yes, I know. THE DEPUTY PRESIDENT: Then if you go to page 31, two days later, you're again asked, 'Are you okay'? At page 31. MR WAGLE: Yes. Said me - - - THE DEPUTY PRESIDENT: 'I don't know why you leave the job so urgently but I respect that. Please follow our procedure to finalise the remaining, thanks'. I don't see anything in these text messages that is indicating that Mr Guo dismissed you. MR WAGLE: I knew that I was already dismissed. I didn't knew that actually I was dismissed or not. But on 3 September he called me and said, 'Are you coming tomorrow or not', and I said him, 'I can't come, you know that. I have headache'. THE DEPUTY PRESIDENT: So this headache lasted for how many days? MR WAGLE: Sorry? THE DEPUTY PRESIDENT: How long did the headache last for? MR WAGLE: Three to four days. THE DEPUTY PRESIDENT: So you didn't know if you were dismissed. What day was that, that you didn't know whether you'd been dismissed? MR WAGLE: Third of September. THE DEPUTY PRESIDENT: But you put in your form F2 that you were dismissed on the 2nd. How can that be? MR WAGLE: So (indistinct) where is it, that mention? THE DEPUTY PRESIDENT: Well, you say at page 2 in your application: 'The effective dismissal date was 2 September 2023', right? Now, you've just said to me that on 3 September you didn't know if you were dismissed and I'm just wondering how it can be that you can claim to have been dismissed on 2 September and then say that on 3 September you didn't know if you were dismissed. … -- 6 of 20 -- [2024 FWC 58 7 THE DEPUTY PRESIDENT: You say in your application you were dismissed on the 2nd, which was the Saturday, correct? You've said to me in evidence just previously that you didn't know if you were dismissed on the Sunday. MR WAGLE: I was not (indistinct) on that period so I ask - - - THE DEPUTY PRESIDENT: It all arose because I'm looking at these text messages and I can't see anything that looks like you being dismissed. It's a number of times asking if you're okay. When it's put to you, 'I don't know why you leave the job so urgently but I respect that', you didn't say, 'Well, you dismissed me'. MR WAGLE: Because I was not that – I can't say that – sorry. THE DEPUTY PRESIDENT: You can't say - - - MR WAGLE: Say I'm a low-key guy so I can't – I didn't know what was happening at that time so I was emotional at that time - - - THE DEPUTY PRESIDENT: Tell me right now. So you say you've been dismissed. MR WAGLE: Yes. THE DEPUTY PRESIDENT: How? MR WAGLE: On 3 September I was on sick leave at the time and at 5.51 pm – it was on Sunday, yes – I was expecting wages from him but I received a missed call from him at 5.51 and then I call him back, 'Yes, what's the issue', I said. And he said, 'When do you need pay slip', and something. He asked me, 'When do you need pay slips', and something like that. I told him, 'I need it now and I need all of the pay slips', and then he said, 'Let's leave these things right now, just ignore it', sorry – 'Are you coming to work tomorrow or not', he just said: 'I can't come work tomorrow, I am sick'. THE DEPUTY PRESIDENT: How did you know you were going to be sick the next day? MR WAGLE: It was - - - THE DEPUTY PRESIDENT: You've been asked a question. You've been sick for two days and you're being asked late on 3 November, 'Are you coming to work tomorrow'? MR WAGLE: Yes. THE DEPUTY PRESIDENT: Now, you say in the application that you were dismissed the day before that conversation and you're now saying that the employer is saying, 'Are you going to come to work'? So tell me, what am I missing? Where is a dismissal? MR WAGLE: Dismissal was happened – I think I don't have evidence of that particular conversation. -- 7 of 20 -- [2024] FWC 58 8 THE DEPUTY PRESIDENT: Tell me. You say there was a conversation where you were dismissed. MR WAGLE: Yes. THE DEPUTY PRESIDENT: On the phone. MR WAGLE: On the phone. THE DEPUTY PRESIDENT: On around 5.51 pm on 3 November. MR WAGLE: No, 5.57, something like that. THE DEPUTY PRESIDENT: 5.57 – what was said? MR WAGLE: He said me, 'Are you coming tomorrow', and I said I can't come tomorrow because I am sick: 'Okay, if you are not coming tomorrow, I will assume that you got the job already and if you are coming tomorrow, if you are coming tomorrow this takes me – I will fix out the remaining wages'. THE DEPUTY PRESIDENT: 'If you don't come tomorrow I assume you have a job elsewhere'? MR WAGLE: I'm not sure. THE DEPUTY PRESIDENT: I'm trying to understand: 'If you don't come tomorrow I'll assume you have' - - - MR WAGLE: 'I'll assume that you got the job somewhere else'. That's what he said. THE DEPUTY PRESIDENT: And then you didn't go to work the next day. MR WAGLE: How am I going – how am I supposed to go work next day when I am sick, sir? THE DEPUTY PRESIDENT: How did you advise the respondent that you were sick the next day? MR WAGLE: I've - I - I inform him already, day before, I can't come, because I was THE DEPUTY PRESIDENT: So the day before? MR WAGLE: Yes. THE DEPUTY PRESIDENT: How did you know you were going to be sick the next day? MR WAGLE: Because I was not fit - able to come - to go to work tomorrow. I knew that. And so that he could manage another worker on that period, so I -- 8 of 20 -- [2024 FWC 58 9 THE DEPUTY PRESIDENT: And then - so that happened on - you say - late on 3 November. Yes? MR WAGLE: September. September, October - September, yes. THE DEPUTY PRESIDENT: Sorry; September. Late on 3 September, 5.57 pm, you had this conversation. But then, if we look at page 31, this is 4 September. Are you okay? I don't know why you leave the job so urgently, but I respect that. Please follow our procedures. And then, on the next page, in response to that, you say, 'Thanks. I appreciate that.' Now, what I'm putting to you squarely is this: that when I read these text messages, they don't reflect what you say occurred. What do you say to that? MR WAGLE: Just give me one moment, sir. Can you please turn to page 9. THE DEPUTY PRESIDENT: Sorry? MR WAGLE: Can - on page 9 THE DEPUTY PRESIDENT: Yes? MR WAGLE: Before the - before the text message he sent, 'Are you okay?' at 11.39, 4 September, on the highlighted one, he said, 'I can't, as everyone (indistinct) has to sign off the end of the employment form officially.' I haven't mentioned anywhere that I'm leaving job. I was just asking the pay slips, and he was pushing me to terminate the job. I didn't - I didn't have - mention anywhere that I'm going to leave the job. So when were - and then I was surprised. I was just - I was surprised at what he said. THE DEPUTY PRESIDENT: Because you had been sending him messages, at page 28, regarding transfers, he said, he will 'try and work it out tomorrow'. You said, 'That's fine.' And then he asks, 'Are you okay?' That's the first time. And then there's further correspondence about those pay slips, and when you didn't collect them. MR WAGLE: First message - first thing we receive - we had conversation - we had conversation over a phone call. And then the second thing - I got this - I was removed from the - WeChat, yes - WeChat at eight thirty - 8.39 am in the morning. And then I got - I received this message: 'Please let me know one day before you come to collect the money and confirm the time.' And I was not sure - just send me - just send me bank transfer, because I need - I need the money in my bank (indistinct). THE DEPUTY PRESIDENT: Anything further? MR WAGLE: That's it. THE DEPUTY PRESIDENT: Anything you want to say in relation to that, Mr Guo? -- 9 of 20 -- [2024] FWC 58 10 MR GUO: I don't know what to say. THE DEPUTY PRESIDENT: Well, what do you say? Was there a conversation on or around 5.57 pm on 3 November? MR GUO: Yes, because - because he didn't show up, I just ring him. I just rang him. That's it. THE DEPUTY PRESIDENT: And said what? MR GUO: Yes. And he said - well, he said that he didn't feel very well, which I never chased up the - the actual - the real reasons, you know. That is all - then I ask him, 'Are you coming back to work?' He said, 'I'm not sure.' He said, 'I'm not sure.' So I said - and then I asked, 'What do you mean? You not know if you - if you want to take some days' rest, it's okay. Just let me know how many days. If not, are you finding another job?' He said, he doesn't - he doesn't want to talk about this over the phone. So what - what am I supposed to think, based on his saying? So I thought he probably find a different job. Then that's my - that's my idea. That's my thoughts. Because, before that, on Saturday, it was not our pay day, and he asked me to pay him on Saturday. Because - because we are all - because - like you or everyone else - they - if they get paid regularly, on - for example, on every Sunday - okay, Sunday, suddenly, one of your workers ask you to get the money ready one day or two days before the pay day, I think, as a, like, a owner of a business, I would feel strange. So I ring him, to say, 'What happened?' I - because I thought he was in trouble or something, because that happened on some other people, so I was trying to help. And he said, he doesn't feel very well. Okay, and then I ask how many days you're going to take the day off, so I can - I can bring someone else to - to work. He said, he's - he wasn't sure. And …. THE DEPUTY PRESIDENT: 'Everyone on book has to sign up at the end of employment form officially.' MR GUO: Yes. THE DEPUTY PRESIDENT: What did that mean? MR GUO: Yes, but because I want to come to the shop to finalise his, like, super - whatever - the pay slip, or - sorry; the - yes, the pay slip - something like that. Because he told me on the phone. He didn't - because after I - Tuesday, I ring him. Wednesday - sorry. Sorry. Saturday, I rang - I call him back, okay? I think he probably would like to leave the job. All right, so between 3 September and 4 September, we were just trying to finalise the remaining - all the payment. The - that's it. But - based on my understanding. -- 10 of 20 -- [2024 FWC 58 11 Because I'm not sure if it's appropriate, because on my job, I have, like, a - a procedure. So if anyone want to leave the job, okay. I don't want to - I just want them to know that I didn't owe them money. I just want come here, face to face, sign - okay. This is the tax that you're going to get paid, or this is a super you're going to get paid, and this is the - the money you're going to paid, and all the story. That's my understanding. But I don't know why it becomes, like, a - should I - should I - should I do this thing? Or - I don't know. Because now I don't know how to run a business any more, because I think it's - to me - I think - I think everything is not that complicated. I just want to make everything simple. If you want to leave the job, okay. You come, we talk, we finalise all the payments, and everything is clear. All right. If you don't leave the job, okay. You let me know how many days you want to take the day off, and then I just arrange the time for you. And then if you - I think simple like this, because I'm a straight guy, so I just want, like, a solid answer. If you come, you come. If not, then it's okay. So that's why, on 4 September, just in case any misunderstanding, before any phone call, for the - during the phone call, I text him to say, I don't know. I don't understand why he left the job so urgently. And he replied me that message. So - to confirm that he left the job himself, instead of got a dismissal. THE DEPUTY PRESIDENT: No problems. MR GUO: Yes. So I cannot prove something that never happened. I'm sorry, I cannot prove that. I can't prove that something never happened on me. Yes. [17] Section 12 of the Act defines the word “dismissed” by reference to s 386 of the Act. Sub-section (1) of s.386 relevantly provides: 386 Meaning of dismissed (1) A person has been dismissed if: (a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or (b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer. [18] What must be shown is that the conduct of the employer was intended to bring the employment to an end. I do not consider the conduct of the Respondent and Mr Guo throughout the Applicant’s employment in general, or between 2 and 4 September 2023 in particular, was conduct intended to bring the Applicant’s employment to an end. [19] I accept that upon the Applicant not attending work, Mr Guo telephoned him around 5.57 pm on 3 September 2023, and that a conversation occurred as follows: -- 11 of 20 -- [2024] FWC 58 12 The Applicant said: “I don’t feel well” Mr Guo said: “Are you coming back to work?” The Applicant said: “I'm not sure.” Mr Guo said: “What do you mean? If you want to take some days' rest, it's okay. Just let me know how many days. If not, are you finding another job?” The Applicant said: “I don’t want to talk about this over the phone”. [20] The Applicant did not attend work on 4 September 2023, and relied on the conversation of 3 September 2023, as constituting advising the Respondent of his illness on 4 September 2023. I do not accept that an employer can sensibly be advised in advance of illness in the form of a headache and consider that the Applicant had resolved not to return to work as he was agitating the FWO claim, while Mr Guo was advised of the FWO claim on 5 September 2023. [21] In response to the Applicant’s non-attendance on 4 September 2023, Mr Guo messaged the Applicant stating “Are you okay? I don't know why you leave the job so urgently, but I respect that. Please follow our procedures”, to which the Applicant replied “Thanks. I appreciate that”, and shortly thereafter the Applicant messaged “If you cant that’s fine [regarding payslips] ...send me your termination letter..i will sign and give you instantly”. [22] In Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli (Tavassoli),4 the Full Bench of the Commission conducted a detailed analysis of authorities relating to whether particular resignations constituted dismissal pursuant to various legislative schemes. After that analysis, the Full Bench provided the following distillation: [47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows: (1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer. (2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the -- 12 of 20 -- [2024 FWC 58 13 conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element. [48] It is necessary for an applicant for an unfair dismissal remedy whose employment has terminated because the employer has acted on a communication of resignation on the part of the employee to articulate whether they contend they were dismissed in the first or the second scenario above (although it may be possible for both scenarios to arise in a particular factual situation). Where the applicant is self-represented or inadequately represented, it may be necessary for the member of the Commission hearing the matter to clarify with the applicant the precise basis upon which it is contended that the applicant was dismissed. If this is not done, it may lead to the wrong test being applied to the matter. [23] I do not consider that there existed any stress or confusion, and consider the Applicant had resolved not to return to work, presumably because he was pursuing the FWO claim. Mr Guo properly sought to clarify and confirm with the Applicant what he was intending to do on 3 September 2023. The Respondent engaged in no conduct with the intention of bringing the employment to an end, and accordingly there was no dismissal. (b) Minimum Employment Period. [24] Section 382 of the Act provides: “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....” [25] Section 383 of the Act provides: “383 Meaning of minimum employment period The minimum employment period is: (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.” [26] Section 384 of the Act defines “period of employment” as follows: -- 13 of 20 -- [2024] FWC 58 14 “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 on a regular and systematic basis; 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.” [27] “Service” is defined by s.22 of the Act as follows: “22 Meanings of service and continuous service General meaning (1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2). … (2) An excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service. -- 14 of 20 -- [2024 FWC 58 15 (3A) Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies). If they do so, subsection (3) applies accordingly. Meaning for Divisions 4 and 5, and Subdivision A of Division 11, of Part 2-2 (4) For the purposes of Divisions 4 and 5, and Subdivision A of Division 11, of Part 2- 2: (a) a period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include: (i) any period of unauthorised absence; or (ii) any other period of a kind prescribed by the regulations; and (b) a period referred to in subparagraph (a)(i) or (ii) does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service; and (c) subsections (1), (2) and (3) do not apply. ... (4A) Regulations made for the purposes of subparagraph (4)(a)(ii) may prescribe different kinds of periods for the purposes of different provisions to which subsection (4) applies. If they do so, paragraph (4)(b) applies accordingly. When service with one employer counts as service with another employer (5) If there is a transfer of employment (see subsection (7)) in relation to a national system employee: (a) any period of service of the employee with the first employer counts as service of the employee with the second employer; and (b) the period between the termination of the employment with the first employer and the start of the employment with the second employer does not break the employee’s continuous service with the second employer (taking account of the effect of paragraph (a)), but does not count towards the length of the employee’s continuous service with the second employer. ... Meaning of transfer of employment etc. -- 15 of 20 -- [2024] FWC 58 16 (7) There is a transfer of employment of a national system employee from one national system employer (the first employer) to another national system employer (the second employer) if: (a) the following conditions are satisfied: (i) the employee becomes employed by the second employer not more than 3 months after the termination of the employee’s employment with the first employer; (ii) the first employer and the second employer are associated entities when the employee becomes employed by the second employer; or (b) the following conditions are satisfied: (i) the employee is a transferring employee in relation to a transfer of business from the first employer to the second employer; (ii) the first employer and the second employer are not associated entities when the employee becomes employed by the second employer. Note: Paragraph (a) applies whether or not there is a transfer of business from the first employer to the second employer. (8) A transfer of employment: (a) is a transfer of employment between associated entities if paragraph (7)(a) applies; and (b) is a transfer of employment between non-associated entities if paragraph (7)(b) applies.” [28] As Saunders C (as he then was) observed in Harris v Laing O’Rourke Australia Construction Pty Ltd:5 The relevant statutory regime may be summarised in the following way: (a) An employee must have completed at least the minimum employment period to be eligible to bring an unfair dismissal claim against their employer (ss.382, 390 & 396 of the Act); (b) For a person employed by a non-small business employer, the minimum employment period is six months (s.383 of the Act) [For a person employed by a small business employer, the minimum employment period is twelve months]; (c) An employee’s period of employment with an employer is the period of continuous service the employee has completed with their employer (s.384(1) of the Act); -- 16 of 20 -- [2024 FWC 58 17 (d) A period of “service” by an employee with their employer is a period during which the employee is employed by the employer, but does not include certain “excluded periods” (ss.12 & 22 of the Act); (e) The expression “continuous service” is not defined in the Act. The ordinary meaning of “continuous service” is the period of unbroken service by an employee with an employer. However, the ordinary meaning of “continuous service” is affected by s.22 (s.12 of the Act); (f) An “excluded period” does not break an employee’s “continuous service” with their employer, but does not count towards the length of the employee’s “continuous service” (s.22(3) of the Act). “Excluded periods” include a period of unauthorised absence and a period of unpaid leave or unpaid authorised absence, subject to certain exceptions (s.22(2) of the Act); (g) Subsections 22(5) and (7) of the Act alter the ordinary meaning of “continuous service”. In effect, they deem service by an employee with one employer to be service with another employer if there is a transfer of employment within the meaning of s.22(7) of the Act. In addition, those provisions stipulate that, in the event of such a transfer of employment, the period between the termination of employment with the first employer and the commencement of employment with the second employer does not break the employee’s “continuous service” with the second employer, but the “gap” does not count towards the length of the employee’s “continuous service” with the second employer (s.22(5)(b) of the Act); and (h) In order for an employee’s service with a previous employer to be deemed to be part of their “continuous service” with a subsequent employer as a result of a “transfer of employment”, one of the following sets of conditions must be satisfied (s.22(7) of the Act): • First, the first and second employers must be “associated entities” and the “gap” in employment must not be more than three months; or • Secondly, the first and second employers are not “associated entities” and the employee is a “transferring employee” in relation to a “transfer of business” within the meaning of s.311 of the Act. It is plain from the references to a transfer of employment from the “first employer” to the “second employer” in s.22(5) and (7) of the Act that the deeming provisions in those sections do not apply unless the employee is employed by two different employers at two different points in time. The Act does not deem or otherwise permit an employee whose employment relationship with an employer comes to an end and is later re-employed by the same employer to have their earlier period of service with the employer combined with their later period of service as part of their “continuous service” with the same employer. Put another way, a “gap” between periods of employment with the same employer would not satisfy the ordinary meaning of “continuous service” because the service is broken and there is nothing in s.22 or elsewhere in the Act to alter this outcome. For those reasons, I agree with the conclusion reached in relation to this issue by Commissioner Spencer in Voican v Monadelphous Engineering Pty Ltd at [64]-[69] and -- 17 of 20 -- [2024] FWC 58 18 Commissioner Roe in Tebble v Rizmas Pty Ltd at [6], but respectfully disagree with the obiter remarks by Commissioner Cambridge in Kefer v Tattersall’s Holdings Pty Ltd at [41]-[44]. [Footnotes omitted; Emphasis added] [29] The determination of whether the Applicant served the minimum employment period of 12 months involves consideration of the gap in employment from around 26 September 2023, for a period of around 8 weeks. [30] The Applicant claimed that he commenced work around 11 July 2022, and after 4 weeks gave 45 days’ notice of necessary leave for his wedding, which Mr Guo granted. The issue of certainty of re-engagement was explored in the Hearing. While Mr Guo put there was no certainty, the position of the Applicant was:6 Mr Wagle, anything you want to say in response to that? MR WAGLE: Yes, I want – he knew that I was going to return back so he held my money on that particular time – I mean, 25 September. So he gave my money, sum of 700 money at October, 1 October, and then he gave rest of the money after I come back to work. That means - - - THE DEPUTY PRESIDENT: You were given some money on 1 October? You left on the 26th – I see. You say some money was held? MR WAGLE: Hold, yes. THE DEPUTY PRESIDENT: But what was the arrangement? I mean, you left to get married. You went back to Nepal. MR WAGLE: I gave him prior notice before leaving to Nepal. It's not – it was not like that, 'Hey, I'm going to get married and I'm going to get off from tomorrow.' It wasn't like that. I gave him 45 days of notice before going to Nepal and getting married. Even if - - - THE DEPUTY PRESIDENT: So you gave him – yes. You gave him 45 days' notice. On the last day you worked, what was said? What was the understanding about work? MR WAGLE: He just said – yes. He just – no, (indistinct)her wife said, yes, yes, 'Happy married life.' This they say. That's the thing. THE DEPUTY PRESIDENT: So they may never see you again? MR WAGLE: No. They were expecting to see me, cause I - - - THE DEPUTY PRESIDENT: When? MR WAGLE: He told me – he told me that 'Whenever you come to Sydney, just ring me.' So I just send him text message. -- 18 of 20 -- [2024 FWC 58 19 THE DEPUTY PRESIDENT: So basically the arrangement was, 'When you come back to Sydney, give me a call'? MR WAGLE: Yes. [31] The employment relationship between the Applicant and Respondent ceased when the Applicant returned to Nepal for an indeterminate period of time. While the Applicant seems to have clearly been a casual employee, he did not hold a reasonable expectation of continuing employment on a regular and systematic basis [32] The Act does not deem or otherwise permit an employee whose employment relationship with an employer comes to an end and is later re-employed by the same employer to have their earlier period of service with the employer combined with their later period of service as part of their “continuous service” with the same employer. Put another way, a “gap” between periods of employment with the same employer would not satisfy the ordinary meaning of “continuous service” because the service is broken and there is nothing in s.22 or elsewhere in the Act [33] While not pressed by the Respondent, I also consider that there was a gap in service from around 26 September 2022 to around 14 November 2022. The date of alleged dismissal was 2 September 2023. Accordingly, the employment period was approximately 2 months less that the minimum required. [34] Having not completed a period of employment with his employer of at least the minimum employment period, the Applicant is not a person protected from unfair dismissal, and the jurisdictional objection regarding minimum employment period is also upheld. Conclusion [35] For the reasons set out above, I am satisfied that; (a) The Applicant was not dismissed by the Respondent; and (b) The Applicant was not employed by the Respondent for at least the minimum employment period at the time of his dismissal . [36] It follows that the Applicant is not a person who was protected from unfair dismissal at the time of his dismissal. The Application is therefore dismissed. -- 19 of 20 -- [2024] FWC 58 20 DEPUTY PRESIDENT Appearances: Mr Wagle (the Applicant). Mr Wei Guo (for the Respondent). Hearing details: 18 December 2023. Sydney. In-Person. Printed by authority of the Commonwealth Government Printer <PR770079> 1 Transcript PN 61 and 120. 2 S.23. 3 Transcript PN 341 to 434. 4 [2017] FWCFB 3941. 5 [2017] FWC 1204, at [8] and [9]. 6 Transcript PN 184 to 194. -- 20 of 20 --