Colin McKerlie v Private Fleet Group Pty Ltd - [2025] FWC 2185

[2025] FWC 2185

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Colin McKerlie
v

Private Fleet Group Pty Ltd

(U2025/8790)

COMMISSIONER SLOAN

SYDNEY, 28 JULY 2025

Application for an unfair dismissal remedy – jurisdictional objection – whether applicant had completed minimum employment period – whether respondent a small business employer – jurisdictional objection upheld

Colin McKerlie was employed by Private Fleet Group Pty Limited (“PFG”) as a car buyer’s agent. PFG terminated his employment on 2 May 2025.

On 21 May 2025, Mr McKerlie filed an unfair dismissal application under section 394 of the Fair Work Act 2009[1] (“Application”). Relevantly for present purposes, the Fair Work Act provides as follows:

To be protected from unfair dismissal, a person needs to have completed a period of a employment with their employer of at least the “minimum employment period”.[2]

The minimum employment period is six months, unless the employer is a “small business employer”, in which case the period is 12 months.[3]

An employer is a small business employer at a particular time if it employs fewer than 15 employees at that time.[4] In calculating the number of employees employed at a particular time, associated entities are taken to be one entity.[5]

An employee’s “period of employment” at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.[6]

Where there has been a “transfer of employment” from one employer to another, service with the first counts as service with the second.[7]

PFG objected to the Application. It contended that as at the date of his dismissal, Mr McKerlie had not completed the minimum employment period with it (“Objection”).

Determination

I have determined to uphold the Objection and to dismiss the Application. My reasons follow.

Relevant factual context

On 6 May 2024, Mr McKerlie commenced employment with a company called Private Fleet Pty Limited (not to be confused with Private Fleet Group Pty Limited). Effective from 1 November 2024, PFG took over ownership of the business.

I explored this change of ownership with the parties during the determinative conference I conducted in relation to the Objection. From the information provided by Jason Varone, PFG’s Chief Executive Officer, and Mr McKerlie, I find as follows:

PFG was not an associated entity of Private Fleet Pty Limited.

There was a transfer of assets from Private Fleet Pty Limited to PFG.

PFG “took over” the employees then working in the business. It offered Mr McKerlie employment from 1 November 2024, which he accepted

PFG recognised the leave entitlements that Mr McKerlie had accrued during his employment with Private Fleet Pty Limited.

On 2 May 2025, Mr Varone sent a letter to Mr McKerlie informing him that his employment with PFG was terminated with effect that day.

The question I need to determine

In its submissions in support of the Objection, PFG contended that Mr McKerlie’s employment commenced on 1 November 2024. However, during the course of the determinative conference and following…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FWC 2185
Decision Date: 28 JULY 2025

CaseChat Overview and Summary

Colin McKerlie lodged an unfair dismissal application against Private Fleet Group Pty Ltd (PFG) after his employment was terminated. PFG objected to the application on the basis that McKerlie had not completed the minimum employment period required to be protected from unfair dismissal. The dispute centred on whether PFG qualified as a small business employer, which would have extended the minimum employment period from six months to 12 months. The Fair Work Commission was tasked with determining whether McKerlie had completed the requisite period of employment and whether PFG was indeed a small business employer.

The key legal issues were whether McKerlie's employment period with PFG counted as continuous service from his previous employer, Private Fleet Pty Ltd, and whether PFG qualified as a small business employer as at the date of dismissal. The determination hinged on the interpretation of the Fair Work Act provisions regarding small business employers and the minimum employment period. McKerlie argued that various factors, including the existence of a "follow-up caller" position, the engagement of the General Manager through a third-party company, independent contractors, and a vacant position, should increase the count of PFG’s employees, thereby disqualifying it as a small business employer.

The Commission found that McKerlie's claims regarding additional employees were speculative and not substantiated by sufficient evidence. The "follow-up caller" position did not exist as a standalone role, and the General Manager was engaged as an independent contractor. Furthermore, the independent contractors were not deemed employees, and the vacant position of Faith Wong did not count towards the employee total for determining small business status. Consequently, PFG was found to have 14 employees on the date of dismissal, confirming its status as a small business employer. As McKerlie had not completed 12 months of continuous service, the objection to jurisdiction was upheld, and the unfair dismissal application was dismissed.

The Commission's decision was based on a detailed examination of the evidence and statutory interpretation, leading to the conclusion that McKerlie was not protected from unfair dismissal due to his insufficient employment period with PFG. The application was therefore dismissed, and McKerlie's claim for unfair dismissal remedy was denied.

Orders