Alice Berry v Glass Now Pty Ltd [2023] FWC 1801

1 Fair Work Act 2009 s.394—Unfair dismissal Alice Berry v Glass Now Pty Ltd (U2023/3014) COMMISSIONER SPENCER BRISBANE, 21 JULY 2023 Application for relief from unfair dismissal – jurisdictional objection – minimum employment period – change of contract – sale of shares – employee or independent contractor. INTRODUCTION [1] Ms Alice Berry (the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy pursuant to section 392 of the Act, alleging that she had been unfairly dismissed from her employment with Glass Now Pty Ltd (Glass Now/the Respondent). The Applicant sought compensation for lost wages in lieu of reinstatement and payment for purchase of her shares in the Respondent Company. The Respondent filed its Form F3 response to the unfair dismissal application in which it raised a jurisdictional objection to the application, pursuant to s.382(a) of the Act, that the Applicant’s employment did not meet the minimum employment period of six months. The Respondent argued that the Applicant is not a person protected from unfair dismissal in accordance with s.382 of the Act and is therefore not entitled to pursue relief for her claimed unfair dismissal under the Act. [2] The Applicant commenced employment with Glass Now on 27 October 2003 as an Accounts and Office Manager, on a full-time basis. At that time, the Applicant, in her capacity as a trustee of the Kvapilova Trust, and her husband, Mr Douglas Berry, were the shareholders of Glass Now until they sold it to the Applicant’s brother-in-law, Mr Vilem Cerny, on 28 June 2022 (the Share Sale Agreement). [3] Following its sale to Mr Cerny, on 1 July 2022, Glass Now entered into a contract (the Consultancy Agreement) with Crownsun Pty Ltd (Crownsun), of which the Applicant and Mr Berry were equal shareholders. Pursuant to the Consultancy Agreement, Crownsun was to provide consulting services to Glass Now. These services were provided by the Applicant and Mr Berry. In December 2022, the Applicant advised the Respondent that the Consultancy Agreement would not be extended beyond 3 January 2023, and it ended on this date. [4] After an absence of approximately one month, the Applicant, on 1 February 2023 commenced employment with Glass Now, owned by Mr Cerny. The Applicant was employed [2023] FWC 1801 DECISION -- 1 of 14 -- [2023] FWC 1801 2 during this period on a part-time basis until her dismissal on 29 March 2023. Whilst the Applicant argued that the period of the one-month absence was approved unpaid leave, there was no connection with Glass Now in relation to the approval or recognition by the Respondent following the Share Sale Agreement. [5] The Applicant stated she was dismissed due to unsatisfactory work performance, and that the dismissal was harsh, unjust or unreasonable. [6] This Decision deals with the Respondent’s jurisdictional objection only. Relevant legislative provisions [7] Section 390 of the Act provides that the Commission may order a remedy if the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed and the Applicant has been unfairly dismissed. [8] Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed: (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. [9] In accordance with section 396 of the Act, it must next be determined: (a) whether the application was made within the period required in subsection 394(2); (b) whether the person was protected from unfair dismissal; (c) whether the dismissal was consistent with the Small Business Fair Dismissal Code; and (d) whether the dismissal was a case of genuine redundancy. [10] The parties agreed that the application was filed in the Commission within the statutory 21-day period. It was not in dispute between the parties that the Respondent was not a small business employer, nor that this dismissal was a termination of employment and not a case of genuine redundancy. [11] The minimum employment period is one year for a small business employer and six months for other employers as set out in section 383 of the Act as follows: “383 Meaning of minimum employment period -- 2 of 14 -- [2023] FWC 1801 3 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.” [12] It was agreed between the parties that the Respondent is not small business employer. Therefore, the minimum employment period that must have been served by the Applicant is six months. [13] Section 384 of the Act defines the period of employment in the following terms; “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.” [14] Section 384(2)(b) goes on to define the circumstances in which an employee’s service with a previous employer may count towards their service with a new employer where it states as follows: “(2) However: … (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.” [15] The meaning of continuous service is set out in section 22 of the Act. In the circumstances of the present case, it appears that sub-sections (5) and (7) may be relevant as they deal with continuous service where there is a transfer of employment of the employee from one employer to another. Section 22 relevantly states as follows: “22 Meanings of service and continuous service (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) The following periods do not count as service: (a) any period of unauthorised absence; -- 3 of 14 -- [2023] FWC 1801 4 (b) any period of unpaid leave or unpaid authorised absence, other than: (i) a period of absence under Division 8 of Part 2-2 (which deals with community service leave); or (ii) a period of stand down under Part 3-5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or (iii) a period of leave or absence of a kind prescribed by the regulations; (c) any other period of a kind prescribed by the regulations. (3) 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. … (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. (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.” Permission to appear [16] The Respondent sought to be legally represented before the Commission. It was set out that the Respondent did not have in house legal expertise and due to the complexity of the matter would benefit from the assistance of a lawyer. Directions were set for the filing of submissions in relation to this matter. The applicant objected to the legal representation. Further to the filing of submissions, pursuant to section 596 (2)(a), the matter was raised with the -- 4 of 14 -- [2023] FWC 1801 5 parties, and the commissioner set out that it was her obligation to provide a fair process between the parties. After consideration of the matters, to be determined, permission was granted for the Respondent to be legally represented as this would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. [17] Accordingly, the Applicant was self-represented, and the Respondent was represented by Mr Connor McManus, Lawyer of Ellem Warren Napa Lawyers. BACKGROUND [18] In summary terms, the Applicant set out that she commenced full-time employment with Glass Now (when the company was then owned by her husband and her) on 27 October 2003 until 28 June 2022. She argued that from 1 July 2022 until 3 January 2023 she was engaged by the Respondent (the new owner) as a consultant, but she stated that this was effectively akin to a full-time employment relationship. The Applicant stated that from 3 January 2023 to 31 January 2023, she took a period of agreed unpaid leave. From 1 February 2023 until her dismissal on 29 March 2023, the Applicant submitted that she was a part-time employee of the Respondent. On this basis, the Applicant contended that her employment with the Respondent was continuous and unbroken for a period of approximately 20 years. [19] The Applicant stated that her employment with Glass Now involved her working for her husband, Mr Berry’s business. In 2021 the Applicant stated that Mr Berry expressed his wish to sell the Respondent’s business, and that in 2022 the Applicant’s brother-in-law, Mr Cerny, expressed interest in buying the business. [20] Prior to the sale of the business, the Applicant submitted that Mr Cerny indicated that he wished for the Applicant to remain employed with the Respondent in order for her to assist with the transition of ownership to Mr Cerny. Following the sale, the Applicant contended that she was engaged by the Respondent with her husband under a consultancy agreement. [21] The Applicant stated that from 1 August 2022, an agreement had been put in place whereby the Applicant would work four days per week. The Applicant stated that throughout the period of the Consultancy Agreement she invoiced the Respondent for her services, and she initially worked between 25 and 30 hours per week, until Mr Berry stopped consulting, when the Applicant’s hours significantly increased. [22] The Applicant submitted that in December 2022, she advised the Respondent that she would not continue to work pursuant to a consultancy agreement and instead wished to be engaged as an employee from 1 February 2023. The Applicant submitted she made this request as she had been treated as an employee throughout the duration of the consultancy agreement, but did not receive the entitlement of an employee, such as annual leave. The Respondent stated that the consultancy agreement concluded on 31 December 2022. [23] The Applicant submitted that on 3 January 2023, she commenced a period of unpaid leave, which continued until 31 January 2023. The Applicant stated she then commenced work for the Respondent pursuant to an employment contract from 1 February 2023 until her dismissal in March 2023. -- 5 of 14 -- [2023] FWC 1801 6 [24] The Respondent submitted that the Applicant resigned her employment with the Glass Now business upon the sale of the Respondent’s business. The Respondent stated this sale occurred on 28 June 2023, by way of a Share Sale Agreement in which the Applicant and Mr Berry sold 18 of the 20 shares in the Respondent to Mr Cerny. The Applicant retained the two remaining shares of the Respondent. Clause 16.8 of the Share Sale Agreement states: “This agreement constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements or understandings between the parties in connection with its subject matter.” [25] In the alternative, the Respondent submitted that the execution of the consultancy agreement effected the termination of the Applicant’s employment. [26] The Respondent characterised the Applicant’s status, in relation to the Respondent, during the period of the consultancy agreement was that of a contractor. The Respondent argued that the Applicant was an employee of Crownsun throughout this period, and that no direct relationship between the Applicant and Respondent existed. The further engagement of the Applicant as an employee is dealt with below. SUMMARY OF THE EVIDENCE AND SUBMISSIONS [27] Directions had been set for the filing of evidence and submissions for the jurisdictional matter. Accordingly, the parties filed their material in compliance. Determinative conferences were also held with the parties. After these conferences, the parties requested the matter be determined on the papers. Applicant submissions and evidence [28] In support of her application for an unfair dismissal remedy, the Applicant provided written submissions on why she satisfied the minimum employment period. [29] In addition to those matters set out in the ‘background’ above, in summary, the Applicant submitted that an employment relationship between herself and the Respondent was created in September 2022, when the Respondent engaged the consultancy services of another service provider in addition to Crownsun. The Applicant stated that clause 1.5 of the General Terms and Conditions of the consultancy agreement precludes the Respondent from engaging other services providers, but that the Respondent engaged a personal acquaintance as an IT and business consultant. Clause 1.5 of the consultancy agreement relevantly states: “1.5 No exclusivity & conflicts The Services are exclusively provided by the Service Provider [Crownsun] to the Client [the Respondent] for the Consultancy Term. The Client may not engage other service providers to provide similar services for the Consultancy Term.” [30] It is contested, between the parties, where the other service providing similar services. The Applicant further submitted that the Respondent also breached the terms of the consultancy agreement in relation to the retention of records and intellectual property matters. -- 6 of 14 -- [2023] FWC 1801 7 [31] The Applicant described her consultancy role as materially similar to her previous role when she and her husband had owned the business. She submitted that she performed the same duties in both roles and referred to Mr Cerny as her “boss”, which she says evidenced an employment relationship. The Applicant further stated that in October 2022, she and Mr Cerny had a mutual verbal agreement in which the regular working hours of the Applicant were set. [32] In December 2022, the Applicant stated that she had a discussion with Mr Cerny in which she explained that aside from one aspect of her role which involved the training of another staff member, she did not feel that she was providing consultancy services, but instead was carrying out the functions of her previous Accounts and Officer Manager role. The Applicant submitted that Mr Cerny agreed with her assessment, and on that basis the Applicant put forward an employment proposal with identical conditions to the working arrangements that had been in place since October 2022, save for a minor adjustment to ordinary working hours. The Applicant stated that Mr Cerny accepted her proposal without any suggested amendments. [33] The Applicant set out that from 1 February 2023 she commenced employment with the Respondent in the function of Accounts and Office Manager. Respondent submissions and evidence [34] In addition to those matters set out in the ‘background’ above, the Respondent submitted that the termination was for a valid reason and was not harsh, unjust or unreasonable. [35] In summary, the Respondent submitted that upon signing the Share Sale Agreement, in accordance with clause 16.8, the Applicant and Mr Berry resigned their employment with the Respondent, or that by executing the consultancy agreement, the Applicant terminated her employment with the Respondent. [36] The Respondent submitted that the Applicant had removed herself as an employee from Xero, the Respondent’s bookkeeping software. [37] The Respondent set out what it considered to be the salient features of the consultancy agreement that demonstrated the Applicant’s status as that of a contractor, and not an employee. These features were set out as follows: • A minimum weekly commitment by the Respondent to engaging Crownsun to supply: (i) The Applicant for 30 hours per week; and (ii) Mr Berry for 25 hours per week. • Crownsun was permitted to “engage other professionals to assist with providing the services”; • Payment is to be made to Crownsun within 7 days of the presentation of an invoice; • The right to charge interest on unpaid invoices; • Crownsun was liable for all its own insurance and licencing costs in respect of the servicers it provided the Respondent; • All incidental expenses of providing the services were payable by Crownsun; • The agreement was for a fixed term of 1 July 2022 to 31 December 2022; -- 7 of 14 -- [2023] FWC 1801 8 • The fixed term could only be extended on the Respondent’s request; • Crownsun was entitled to suspend work where invoices were outstanding for more than 14 days; • The agreement could be terminated by either party on 30 days’ notice; • Crownsun was liable to the Respondent for a breach of the agreement by Crownsun; • Crownsun was obliged to maintain its own QBCC licence for providing its services; and • The Respondent was liable to pay Crownsun GST for the services supplied by Crownsun. [38] The Respondent stated that in December 2022, the Applicant advised the Respondent that the fixed term of the Consultancy Agreement would not be extended and instead offered for her to commence employment with the Respondent on 1 February 2023. Accordingly, the Applicant commenced part-time employment with the Respondent on this date. [39] Referring to Tebble v Rizmas (Tebble),1 the Respondent argued that by the Applicant entering into the consultancy agreement after the sale, the Applicant was not engaged as a new employee with the new company. Tebble relevantly stated: “The period between a resignation and reemployment cannot be characterised as a period during which the employee is ‘employed by the employer’ unless the employer specifically agrees to regard it as such”.2 [40] The Respondent described the Applicant’s obligations under the Consultancy Agreement as “entirely antithetical to her ongoing employment”.3 On this point, the Respondent cited Karam v Varga,4 which provided: “To establish that the earlier contract had been terminated and replaced by the later contract, the later contract must be entirely inconsistent with the former contract or, at least, inconsistent with it to an extent that goes to the root of it.”5 [41] The Respondent argued that such inconsistency lies in the fact that the Consultancy Agreement required that Crownsun provide the Applicant’s services to the Respondent for a minimum of 30 hours per week, that Crownsun issued invoices to the Respondent, that a right to suspend work and engage other consultants existed, and that that the Agreement stated that Crownsun was the corporate entity engaged to provide consultancy services. This demonstrated, in the Respondent’s opinion, that there was no direct relationship between the Applicant and the Respondent throughout the period of the Consultancy Agreement. Instead, the Respondent submitted that the relevant contracting relationship was between Crownsun and the Respondent. -- 8 of 14 -- [2023] FWC 1801 9 CONSIDERATION [42] The issue for determination in this matter is the length of the Applicant’s period of employment for the purposes of s.383 of the Act as at the time of dismissal. This issue requires a consideration of the effect of both the first and second periods of employment, and whether they, along with any other purported period of employment throughout the intervening period, constitute a period of continuous service, that meets the minimum employment period of six months, for the purposes of ss. 22, 383 and 384 of the Act. [43] There was no dispute that the Applicant was employed by the former Respondent company from 27 October 2003 to 28 June 2022, and from 1 February 2023 to 29 March 2023. It must therefore be considered whether the Applicant was an employee of the Respondent for any time during the period between her resignation on 28 June 2022 and her commencement of the part-time employment on 1 February 2023, being the period of the Consultancy Agreement. [44] In determining this issue, I will first address the Respondent’s contention that upon the execution of either the Share Sale Agreement or the Consultancy Agreement, the Applicant’s employment with the Respondent ended. In their respective submissions, the Respondent submitted,6 and the Applicant conceded,7 that the Applicant resigned her employment with the Respondent immediately after signing the Share Sale Agreement. The Applicant further agreed that the execution of the Consultancy Agreement operated to terminate her employment with the former business, as owned by herself with her husband.8 Therefore, the Applicant’s employment with the Respondent ended on 28 June 2022. [45] It must now be considered whether, despite the termination of the Applicant’s employment with the Respondent on 28 June 2022, a subsequent employment relationship was created at any point following the execution of the Consultancy Agreement. [46] The Respondent submitted that that for the period of the Consultancy Agreement, the Applicant was not employed by the Respondent, but instead was a contractor. In Hollis v Vabu Pty Ltd,9 it was held that “the distinction between an employee and an independent contractor is rooted fundamentally in the difference between a person who serves his employer in his, the employer’s, business, and a person who carries on a trade or business of his own”.10 [47] More relevantly now, Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (Personnel Contracting)11 considered the principles for distinguishing between employment and independent contracting relationships. It provides that a contract-focused approach to determining the issue must be used, and that the performance of the contract and the course of dealings between the parties are not to be examined.12 [48] The contract must be examined to determine whether the worker is engaged to work in the business of another.13 The Consultancy Agreement provided that it was the corporate entity Crownsun that was engaged under the consultancy contract, and not the Applicant in an individual capacity. As set out by the Respondent, no direct relationship existed between the Applicant and Respondent in relation to the Consultancy Agreement, as evidenced by the unilateral decision taken by Mr Berry to cease providing consultancy services in October 2022. This fact was also evidence of the Applicant’s (and Mr Berry’s) right to exercise control over their activities.14 While the Respondent did engage the Applicant and Mr Berry for a minimum -- 9 of 14 -- [2023] FWC 1801 10 weekly number of hours, the Applicant and Mr Berry had the right of control over the nature of the services provided. While the existence of specified regular hours of work might suggest an employment relationship, this is merely “a starting point”.15 [49] It was held in Personnel Contracting that any “label” the parties may choose to attach to the relationship is not determinative or relevant in the classification of the relationship. It is not for the parties to characterise the relationship.16 The Applicant, in arguing that she remained an employee of the Respondent, submitted that she felt her role under the Consultancy Agreement was, for all practical purposes, that of an employment relationship. In accordance with Personnel Contracting, the Applicant’s subjective characterisation of the relationship in this manner does not have a bearing on the true legal nature of the relationship. Furthermore, if the Applicant’s characterisation of the relationship (that there was no material difference in the work performed as compared to the former employment relationship) were accepted, the Consultancy Agreement would have then had little work to do, other than to provide for the cessation of the employment relationship. [50] In ZG Operations Australia Pty Ltd v Jamsek,17 it was stated: “…the character of the relationship between the parties in this case was to be determined by reference to the rights and duties created by the written agreement which comprehensively regulated that relationship”.18 [51] As was raised by the Respondent, the Consultancy Agreement did not create rights and duties for the Applicant on a personal level. Such rights and duties were exercisable by Crownsun, pursuant to clause 2.1 of the Consultancy Agreement, which obligated the company to ensure that services were “provided by qualified and competent personnel (including sub- contractors appointed in writing)”. This term weighs against a finding that an employment relationship existed between the Respondent and the Applicant personally. [52] The Applicant submitted that the Respondent breached the terms of the Consultancy Agreement by engaging a separate consultant, and as a consequence, the Applicant argued this alleged breach somehow dissolved the Consultancy Agreement and established an employment relationship between herself and the Respondent. The basis upon which the Applicant made this argument appears to be that, by engaging a separate consultant, Mr Cerny repudiated the terms of the Consultancy Agreement, meaning that the relationship between the parties must have defaulted to an employment relationship. The Respondent was however, under the Consultancy Agreement, able to engage other consultants but not have them provide similar services. There was no specific evidence on this matter, but it cannot be determined that the contract transitioned to an employment contract. [53] Even if the Applicant is correct that the Respondent breached the Consultancy Agreement, the breach could not have established a new employment agreement or varied the Consultancy Agreement such that it transformed to an employment agreement, without any express intention of the parties to do so. [54] If the Applicant’s argument was that, by the Respondent engaging another consultant, the Respondent started performing the contract as though it were an employment agreement and on that basis an employment relationship commenced, this must also be rejected. The -- 10 of 14 -- [2023] FWC 1801 11 Respondent’s characterisation of the relationship, and any adoption of that characterisation by the Applicant, is inconsistent with Personnel Contracting,19 on the basis that the parties “cannot by a mere consensual label alter the inherent character of the relations they have actually called into existence”.20 Instead, the “rights and duties created by the written agreement” remain applicable.21 [55] Therefore, in the absence of a direct employment relationship between the Applicant and the Respondent, given the written terms of the Consultancy Agreement, I find that the Applicant was not an employee of the Respondent at any time during the term of the Consultancy Agreement from 1 July 2022 to 3 January 2023, and instead she was a contractor. Transfer of employment [56] Neither party provided submissions in respect of whether a transfer of employment occurred, pursuant to s.22 of the Act. However, for completeness, the issue is to be considered in determining the Applicant’s period of service. [57] A transfer of employment in accordance with s.22(7) of the Act has not occurred in these circumstances, as the Applicant’s engagement with the Respondent following the Share Sale Agreement was not as an employee, but was, as previously discussed, as a contractor. While the Applicant was eventually engaged as an employee on 1 February 2023, this occurred more than three months after the termination of her employment that resulted from the Share Sale Agreement. The precondition to a transfer of employment in s.22(7)(a) of the Act was therefore not met. [58] As a transfer of employment did not occur in accordance with s.22(7), the Applicant’s first period of service does not count towards her service with the Respondent following the Share Sale Agreement, pursuant to s.25(5) of the Act. Periods of service [59] In accordance with ss.383 and 384 of the Act, the period of continuous service that the Applicant completed with the Glass Now at the time of dismissal must be determined. [60] There is no dispute that the Applicant completed a period of service with the business, when owned by the Applicant and Mr Berry, from 27 October 2003 until the execution of the Share Sale Agreement on 28 June 2022. [61] From 1 July 2022 to 3 January 2023, the Applicant was engaged as a contractor by Glass Now, owned by Mr Cerny. As discussed earlier, the Applicant was not employee of the Respondent throughout this period, meaning the period was not a period of service. As the Applicant ceased to be an employee, this period as a contractor broke the Applicant’s continuity of service. Therefore, this period from 1 July 2022 to 3 January 2023 cannot be included in any consideration of the Applicant’s continuous service at the time of her dismissal. [62] Then, from 3 January 2023 to 31 January 2023, the Applicant did not perform work for Glass Now. The Applicant contended that she was on a period of agreed unpaid leave during this time. She stated that this had been agreed before the Share Sale Agreement. The Applicant argued that this period was an excluded period,22 and therefore, without being considered a -- 11 of 14 -- [2023] FWC 1801 12 period of service, did not break her continuity of service. Even if this were so, the Applicant had already ceased being an employee of Glass Now at this time, and her continuity of service had already been broken by the execution of the Consultancy Agreement. Further, the old employer, after selling the business, had no authority to approve leave. This period was therefore not a period of service. [63] There is no dispute that, after the one-month absence, the Applicant completed a new period of service with the Respondent from 1 February 2023 to 29 March 2023, a period of 56 days. [64] As the Applicant was not an employee of the Respondent throughout the period of the Consultancy Agreement and the following one-month absence, this period, from 28 June 2022 to 31 January 2023, does not constitute a period of service in accordance with s.22 of the Act. The transfer of employment provision in s.22 of the Act also prevents the Applicant’s initial period of service before the Share Sale Agreement from contributing to this second period of service. Accordingly, the period from 28 June 2022 to 31 January 2023 is required to be excluded, meaning the totality of the Applicant’s employment with the Respondent was not continuous service. [65] Therefore, in accordance with s.384(1) of the Act, the Applicant’s total period of continuous service, as an employee, with the Respondent as at the date of her dismissal, lasted from 1 February 2023 to 29 March 2023, being a total of 56 days. -- 12 of 14 -- [2023] FWC 1801 13 CONCLUSION [66] Accordingly, in considering the facts and circumstances of this matter, the Applicant’s employment did not meet the minimum employment period of six months of continuous service, in accordance with s.383 of the Act, at the date of the Applicant’s dismissal. Consequently, the Respondent’s jurisdictional objection must be upheld, as the Applicant, having not met the minimum employment period, is not a person protected from unfair dismissal, in accordance with s.382 of the Act. [67] Therefore, the Applicant’s Application made pursuant to s.394 is jurisdictionally barred and must be dismissed. [68] I Order accordingly. COMMISSIONER Printed by authority of the Commonwealth Government Printer <PR764476> 1 [2011] FWA 6853. 2 Tebble v Rizmas [2011] FWA 6853 at [6]. 3 Respondent’s Submissions on Jurisdiction at [22]. 4 [2019] QCA 82. 5 Karam v Varga [2019] QCA 82 at [23]. 6 Ibid at [6]. 7 Applicant’s Response to Respondent’s Submission on Jurisdiction at [6]. 8 Ibid at [7]. 9 [2001] HCA 44. 10 Hollis v Vabu Pty Ltd [2001] HCA 44 at [40]. 11 [2022] HCA 1. 12 Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 at [40]-[62], [172]-[178] (‘Personnel Contracting’). 13 Ibid at [39], [180]-[183]. 14 Ibid at [113]-[114] 15 ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 at [106] (‘Jamsek’). 16 Personnel Contracting at [58], [63]-[66], [79]. 17 [2022] HCA 2. 18 Jamsek at [8]. -- 13 of 14 -- [2023] FWC 1801 14 19 Personnel Contracting at [58], [63]-[66], [79]. 20 Curtis v Perth & Fremantle Bottle Exchange Co Ltd [1914] HCA 21, 18 CLR 17 at [39]. 21 Jamsek at [8]. 22 Fair Work Act 2009 (Cth) s.22. -- 14 of 14 --