Damien Marchese v Cubism Projects Pty Ltd - [2025] FWC 2107

[2025] FWC 901

The attached document replaces the document previously issued with the above code on 15 October 2025.

Update to typographical error in MNC and print ID.

Associate to COMMISSION ALLISON

Dated 22 October 2025

[2025] FWC 2107

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Damien Marchese
v

Cubism Projects Pty Ltd

(U2025/5628)

COMMISSIONER ALLISON

MELBOURNE, 15 OCTOBER 2025

Application for an unfair dismissal remedy – minimum employment period – has there been a transfer of business

Mr Damien Marchese has made an application for an unfair dismissal remedy against his former employer Cubism Projects Pty Ltd (Cubism). Mr Marchese, a construction site supervisor, was initially engaged by Fetch Personnel (Fetch), a labour hire provider, to perform work on four Cubism construction projects during 2023 and 2024. On 23 July 2024, Mr Marchese commenced direct employment with Cubism in the role of construction site supervisor. While the parties are in dispute regarding how and when Mr Marchese’s employment with Cubism terminated, both parties accept Mr Marchese’s employment had ended by 2 May 2025.

Under the Fair Work Act 2009 (Cth) (the Act) an employee must have completed at least the minimum employment period to be eligible to bring an unfair dismissal claim against an employer.[1] For a small business employer, the minimum employment period is one year.[2] It is uncontested that Cubsim is a small business employer and accordingly Mr Marchese is required to have served one year with Cubism to be entitled to pursue an unfair dismissal claim.

It is uncontested that Mr Marchese’s direct employment with Cubism was for less than the minimum employment period. Mr Marchese claims he has met the minimum employment period on the basis that his engagement with Fetch on various Cubism projects should be counted towards his service with Cubism. The only way Mr Marchese’s service with Fetch can count towards Mr Marchese’s service with Cubism is if Mr Marchese is a transferring employee in relation to a transfer of business between Fetch and Cubism.

This decision considers whether Mr Marchese is a transferring employee in relation to a transfer of business and, therefore, whether his service with Fetch counts towards his service with Cubism for the purpose of the minimum employment period. I note that I make no finding in relation to the other jurisdictional issue of whether there was a dismissal (or a resignation), or whether any dismissal was, in fact, unfair. I recognise Mr Marchese feels aggrieved by the situation. Similarly, I acknowledge Cubism denies it has engaged in unfair behaviour. This decision only considers the threshold jurisdictional issue of whether Mr Marchese’s has completed the minimum employment period to allow him to bring an unfair dismissal claim.

The parties submitted written submissions regarding this matter, and a determinative conference was held on Tuesday 22 July 2025. Mr Marchese represented himself. Cubism was represented by Ms Grace Feeney-Connor from the Master Builders Association of Victoria. After the hearing Mr Marchese sought…

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 2107
Decision Date: 15 OCTOBER 2025

CaseChat Overview and Summary

In the case of Damien Marchese v Cubism Projects Pty Ltd, Damien Marchese sought to bring an unfair dismissal claim against his former employer, Cubism Projects Pty Ltd (Cubism). The central issue in this case was whether Marchese's employment period with Fetch Personnel, a labour hire company, could be counted towards his employment with Cubism to meet the minimum employment period requirement under the Fair Work Act 2009 (Cth). The Act requires an employee to complete at least the minimum employment period to be eligible for an unfair dismissal claim, which is one year for small business employers like Cubism.

Marchese argued that his service with Fetch should be counted towards his employment with Cubism because he was a transferring employee in relation to a transfer of business from Fetch to Cubism. The court had to determine whether there was a transfer of business under section 311(5) of the Act, which requires a connection between Fetch and Cubism as described in the subsections. Marchese contended that Cubism outsourced the work to Fetch and then ceased outsourcing when he was directly employed. However, the court found that Cubism did not cease outsourcing work to Fetch when it directly employed Marchese. The evidence showed that Cubism continued to use Fetch and other labour hire providers for supplementary labour on its projects. Therefore, the court concluded that there was no transfer of business, and Marchese's service with Fetch could not be counted towards his employment with Cubism.

As a result, Marchese did not complete the minimum employment period required to make an unfair dismissal application. The court dismissed Marchese's application for an unfair dismissal remedy, finding that he was not protected from unfair dismissal under the Act. The decision focused solely on the jurisdictional issue of the minimum employment period and did not address the merits of the dismissal or whether it was unfair.

Orders