Gayed and Secretary, Department of Jobs and Small Business

This matter concerned an application by Mr. Gayed for review of a decision made by the FEG branch of the Department of Jobs and Small Business. Mr. Gayed sought review of determinations regarding his entitlement to redundancy pay and wages, disagreeing with the calculations and the overall outcome. He had commenced full-time employment with Eliana Construction and Development Group on 18 May 2009 as a site supervisor. Eliana Construction was placed into administration on 11 October 2016, with liquidators appointed on 3 November 2016. Prior to administration, most staff were terminated on 25 September 2016. Mr. Gayed submitted a claim under the Fair Entitlements Guarantee (FEG) program for unpaid wages, annual leave, payment in lieu of notice, long service leave, and redundancy payment, indicating his employment ceased on 11 October 2016. The initial decision-maker determined Mr. Gayed was entitled to $35,578.92, based on an assumed employment end date of 25 September 2016 and an entitlement to wages up to 19 June 2016, resulting in a minimal unpaid wage entitlement.

The Tribunal was required to determine the correct date of Mr. Gayed’s employment cessation with Eliana Construction, and consequently, his entitlement to redundancy pay and the calculation of his unpaid wages. A key legal issue was whether Eliana Construction qualified as a "small business employer" at the time of termination, which would exclude an entitlement to redundancy pay under section 121 of the *Fair Work Act 2009* (Cth). The Tribunal also had to consider whether payments received by Mr. Gayed in August 2016 were towards historic debt or wages for the relevant period.

The Tribunal found that while Eliana Construction was placed into administration on 11 October 2016, and most employees were terminated on 25 September 2016, the evidence, including a Centrelink Employment Separation Certificate, indicated Mr. Gayed’s employment ceased on 11 October 2016. The Tribunal noted that the company’s insolvency practitioner advised that no records existed from 20 June 2016 onwards. Despite Mr. Gayed’s assertion that he assisted the company for two weeks after 25 September 2016, the Tribunal found insufficient corroborating evidence to establish he was employed during that period, or that his assistance was anything other than helping his relative, the company director. Crucially, the Tribunal determined that Eliana Construction was a small business employer at the time of Mr. Gayed’s termination on 11 October 2016, meaning he was not entitled to a redundancy payment under the *Fair Work Act 2009*.

The Tribunal set aside the original decision and remitted the matter to the Secretary, Department of Jobs and Small Business for recalculation. The recalculation was to proceed on the basis that Mr. Gayed’s wages entitlement during the relevant period should not be discounted by amounts paid by Eliana Construction in August 2016, as these were payments towards historic debt, not wages for that period. The Tribunal was unable to determine the final FEG advance or whether Mr. Gayed would incur a debt, necessitating the remittal for recalculation.