Fair Work Commission

Overview

See Fair Work Act s.383

An employee may make an application for an unfair dismissal remedy if they have completed a minimum employment period of:

• six months, or
• one year – where the employer is a 'small business'.

Periods of service as a casual employee may or may not count.

What is a small business?

See Fair Work Act s.23

A small business is a business that employs fewer than 15 employees. The number of employees is determined by a head count of all full-time and part-time employees. Casual employees employed on a regular and systematic basis are also included in the count.

Associated entities of the business are taken to be one entity.^[1]

To avoid doubt, in determining whether a business is a small business 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:

• the employee who is being dismissed or whose employment is being terminated, and
• any other employee of the employer who is also being dismissed or whose employment is also being terminated.

References

^[1] See for example Pretorius v Gardens of Italy Pty Ltd [2016] FWC 2503 (O'Callaghan SDP, 22 April 2016).