Mr Tosho Kostov v Kinetic Specialised Resources Pty Ltd
[2025] FWC 302
•4 FEBRUARY 2025
| [2025] FWC 302 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Tosho Kostov
v
Kinetic Specialised Resources Pty Ltd
(U2024/12780)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 4 FEBRUARY 2025 |
Application for an unfair dismissal remedy – jurisdiction – minimum employment period – bus driver – whether move to South Australia from Queensland was internal transfer or new employment following resignation – whether service continuous when re-employed following resignation – whether twenty day gap broke service – service not continuous – application dismissed
On 24 October 2024, Tosho Kostov (Mr Kostov or the applicant) applied to the Commission under s 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his dismissal by Kinetic Specialised Resources Pty Ltd (Kinetic, the employer or the respondent).
He claims to have been unfairly dismissed on 4 October 2024.
Kinetic oppose the application and raise a jurisdictional issue. It submits that Mr Kostov was not a person protected from unfair dismissal under the FW Act because he had not completed the minimum employment period (of six months) required by ss 382(a) and 383. It says that Mr Kostov, after having resigned on 2 August 2024, re-commenced new employment on 22 August 2024. Being dismissed on 4 October 2024, he fell short of the six months continuous service requirement.
In response, Mr Kostov contends that his employment commenced on 25 July 2022 in Queensland and that the twenty day gap between finishing in Queensland (2 August 2024) and starting in South Australia (22 August 2024) did not break service because it was either a transfer of employment or a period of absence included as “service’ under the FW Act.
The matter did not resolve at conciliation.
I conducted a hearing on the jurisdictional issue on 22 January 2025. Mr Kostov was self-represented. Kinetic was internally represented by its Head of Workplace Relations, Ms Bicchi.
This decision deals only with the minimum employment period issue.
Evidence
I received evidence from:
· Tosho Kostov (applicant);
· Lenny Eilers (Manager, South Australia);
· Stevie Gunn (Manager, Queensland);
· Sarah Ismail (Executive General Manager); and
· Maria Brewer (Team Leader, Talent Acquisition).
Some, but not all, facts related to the jurisdictional issue are in dispute. Where necessary, I make findings on disputed matters in the body of this decision. The characterisation of some events and conclusions to be drawn from the facts are contested. To the extent necessary I prefer the evidence of Ms Gunn, Ms Brewer, Ms Ismail and Mr Eilers over the evidence of Mr Kostov, to the extent of differences in recall.
Facts
Kinetic
Kinetic provides transport services nationally, including by contract with mining companies operating in Queensland and South Australia. It formerly conducted business as Greyhound Resources Pty Ltd. It is not a small business within the meaning of the FW Act.
Mr Kostov
On 25 July 2022, Mr Kostov commenced employment as a casual bus driver in the Bowen Basin (Queensland) on mining sites.
He is originally a resident of Perth, Western Australia. Whilst working in Queensland he temporarily resided in that State.
Mr Kostov received final warnings from the employer for over speeding in Bowen Basin sites on 14 June 2023 and 21 March 2024.[1]
Following the second final warning, and with a desire to move away from Queensland and closer to Western Australia, Mr Kostov shortly thereafter took interest in working as a driver for the company at the Olympic Dam mine site in South Australia. He informed one of his immediate managers (Ms Booth) of this desire and then liaised with Kinetics’ human resources department (and in particular Ms Brewer) to explore what was possible.
Ms Brewer was the recruitment officer who advertised vacancies (internally and externally) as and when they arose She also informed employees of what was required if they were to apply to work in a different State.
Between April and July 2024, Mr Kostov had a number of discussions with Ms Brewer during which he expressed an interest in working at Olympic Dam when a position became available. For her part, Ms Brewer informed Mr Kostov that he would need to obtain a bus driving licence from the South Australian authorities as that would be a condition of working for the employer in South Australia.
Ms Brewer also informed Mr Kostov that when a vacancy arose it would be advertised and that he would need to apply, but that internal candidates (himself included) would have a better chance of being successful than an external candidate with no experience with the company. Ms Brewer also undertook to inform Mr Kostov as and when a vacancy at Olympic Dam arose (which Mr Kostov believed would be soon).
Mr Kostov seeks a further finding that Kinetic, through Ms Brewer, promised him the job at Olympic Dam when the vacancy arose. For reasons set out below, I do not make this finding.
Armed with the information from Ms Brewer, between April and June 2024 Mr Kostov started to prepare himself for a move to South Australia, including by contacting the South Australian authorities to obtain a bus drivers licence so that he could include proof of the same in his job application when a position became available.
In June 2024 Mr Kostov decided, for personal reasons, to apply for unpaid leave for an extended period. This was granted for the period 21 June 2024 to 19 September 2024.
Also in June 2024 Mr Kostov was informed by the South Australian authorities that an application for a licence required evidence from the employer that he would be working in the State as a bus driver. Mr Kostov sought a statement to this effect from Ms Brewer. Ms Brewer, in an endeavour to assist Mr Kostov and knowing that a future application for such a job vacancy needed proof of a licence, drafted and sent Mr Kostov the following letter for the licensing authority dated 28 June 2024:[2]
“Drivers Accreditation – South Australia
Name: Tosho Kostov
Licence no. 5592129
To whom it may concern,
Tosho Kostov has been employed with the company since July 25, 2022, performing Bus Driver duties in the Bowen Basin, Queensland. He is now being transferred to Olympic Dam to continue his Bus Driver role on a fly-in fly-out basis for the next eight months.
Please don’t hesitate to contact me should you require further information.
Kind regards
Maria Brewer
Senior Talent Partner”
Mr Kostov sent the letter to the authority with additional paperwork to support his application. A few days later (3 July 2024) Mr Kostov was granted a temporary bus driving licence by the South Australian authorities. He sent these details to Ms Brewer under cover of an email in which he stated: “Hi Maria, Here we go, ready to rock and roll. All in your hands now…”. Ms Brewer replied “congrats”.[3]
Mr Kostov seeks a finding that Ms Brewer was congratulating him on both obtaining the licence and on being transferred to Olympic Dam. I do not make this finding. I find that Ms Brewer was simply congratulating Mr Kostov on obtaining the South Australian licence. As an Olympic Dam vacancy had not yet arisen let alone been advertised or applied for, the finding Mr Kostov seeks is not open on the evidence, despite Ms Brewer’s letter of 28 June (considered below).
Ms Gunn, who was one of Mr Kostov’s immediate managers in Queensland, was informed in July 2024 by another manager that Mr Kostov might be interested in returning to work earlier than planned. Needing drivers, Ms Gunn decided to follow up this possibility. Before allocating work to Mr Kostov however, she needed to deal with a disciplinary matter. Shortly before Mr Kostov had gone on unpaid leave he had again been detected over speeding and, being on a final warning, this needed investigation before being offered further shifts by Kinetic.
On 29 July 2024 Ms Gunn sent Mr Kostov an allegations letter.[4] On 30 July 2024 they met (by telephone) during which Ms Gunn explained the latest allegations and indicated that, given the final warning, a show cause meeting would need to be held as to why Mr Kostov’s employment should not be terminated if the allegations were substantiated. A show cause letter was sent on 31 July. A show cause meeting was scheduled for 2 August.
At the 2 August 2024 show cause meeting (again held by telephone, around midday) Ms Gunn advised that the allegations were substantiated. She adjourned the meeting (for about half an hour) informing that the employer would decide on sanction and advise Mr Kostov upon resumption.
Upon resumption, and before Ms Gunn could inform Mr Kostov of the decision (which was that termination would occur considering the past final warnings) Mr Kostov told Ms Gunn that he had decided to resign.
Ms Gunn told Mr Kostov that his resignation was accepted, that it was best for all concerned, and that he would need to put this in writing, which Mr Kostov agreed to do. Ms Gunn did not indicate what the employer’s decision would have otherwise been.
I do not accept Mr Kostov’s assertion that Ms Gunn told Mr Kostov to resign. I prefer Ms Gunn’s evidence that she made no mention of resignation other than, once Mr Kostov had resigned verbally, asking him to put it in writing. Whilst Mr Kostov read the tea leaves that dismissal was likely, he resigned because, in his own words in evidence “I didn’t want to go through the show cause”.[5] I find that Mr Kostov resigned for two interrelated reasons: he didn’t want the disciplinary process to conclude with a dismissal on his record because he wanted to still be eligible for employment at Olympic Dam when a vacancy arose.
Following the telephone meeting, Mr Kostov confirmed his resignation by email sent to Ms Gunn at 1.12pm that day (2 August 2024:[6]
“Hi Stevie, as per our phone conversation I would like to hand my resignation effective immediately.
Regards Theo Kostov.”
As a casual employee, no final entitlements were paid as Mr Kostov had already been paid for his last shift. At the time of resignation Mr Kostov was on unpaid leave and not rostered.
Mr Kostov’s employment records were closed by Kinetic shortly after in the usual way. A Separation Checklist, which is a standard process used by Kinetic to close an employment file, was completed by Ms Gunn.[7] Unknown to Mr Kostov, Ms Gunn recorded “no” and “misconduct” as the reason in the checklist in answer to the question “Would you re-employ the team member?”.
Also unknown to Mr Kostov (and Ms Gunn), that very day (2 August 2024) a vacancy for a bus driver position in South Australia had arisen which Ms Brewer advertised. She had become aware from a South Australian manager (Mr Eilers) late the previous week of the vacancy. The vacancy was for a part-time (not causal) position.
As soon as Ms Brewer advertised the vacancy she informed Mr Kostov (by text sent at 1.40pm[8] on 2 August), as promised.
Mr Kostov, who was unaware of the vacancy or its advertisement at the time of resigning, read Ms Brewer’s text after his meeting with Ms Gunn. He immediately called up the advertisement and at 2.25pm on 2 August 2024 made a job application. He then texted Ms Brewer back “I did apply, please let me know you received and everything is (thumbs up emoji)”. Ms Brewer, unaware that Mr Kostov had resigned or had been subject to a further show cause process, simply replied “yea, received”.[9]
In the days that followed Mr Kostov decided to give himself the best chance of securing the Olympic Dam vacancy, despite the events that had occurred in Queensland with Ms Gunn (the substantiated allegations and the resignation). On Ms Brewer’s suggestion he contacted Kinetics’ Executive General Manager (Western and Central) Ms Ismail to seek her support for his application. He spoke to Ms Ismail and told her that he had applied for the job, had been working in the Bowen Basin for the company and wanted to work at Olympic Dam. Ms Ismail, who did not know Mr Kostov and was surprised at the unsolicited call, told Mr Kostov that his application would be processed in the usual way but that she would inform the South Australian managers (who were the decision-makers) of the contact he had made with her and the interest he had in the job.
Mr Kostov did not disclose to Ms Ismail that he had resigned a week earlier in the wake of an advanced show cause process or that he had been on two final warnings in the Bowen Basin.
Ms Ismail did as she promised. On 13 August 2024 she emailed the South Australian managers.[10]
Amongst four applicants for the job, Mr Kostov was interviewed by Mr Eilers. His job application made no reference to the final warnings or the show cause process in Queensland which had triggered Mr Kostov’s resignation. Mr Eilers did not check internal personnel details, believing that the human resources department would do so and advise any issues. He was unaware of the two final warnings in the Bowen Basin and of the resignation in the wake of the show cause process. Mr Kostov did not disclose this to Mr Eilers during the interview.
Mr Eilers decided to offer the job to Mr Kostov on the terms of a letter dated 16 August 2024[11]. Mr Kostov accepted the offer.
Mr Kostov commenced at Olympic Dam on 22 August 2024 as a part-time employee driving buses at the mine site.
On 13, 14, 15, 16 and 17 September 2024 Mr Kostov was detected speeding whilst working at Olympic Dam.
On 23 September 2024 the South Australian managers formulated over speeding allegations and on 2 October 2024 held an allegations meeting. Mr Eilers found the allegations substantiated and commenced a show cause process.[12]
A show cause response was sent by Mr Kostov on 3 October 2024 and a show cause meeting was held on 4 October 2024, at which time Mr Kostov’s employment was terminated, effective from that day.[13]
Mr Kostov commenced these proceedings on 24 October 2024.
Submissions
Kinetic
Kinetic submit that Mr Kostov did not serve the minimum employment period of six months required by the FW Act to have been protected from unfair dismissal.
Kinetic submit that:
there was no transfer of Mr Kostov’s employment from Queensland to South Australia. Employment at Queensland ended by resignation on 2 August 2024 in the wake of an advanced show cause process and in the shadow of dismissal. Employment in South Australia commenced on 22 August 2024 following an openly advertised vacancy, a job application and an interview process, all of which occurred after the resignation;
the resignation was not forced or induced. Nor was Mr Kostov promised a future job at Olympic Dam or induced to leave Queensland to take up a job in South Australia;
there were two distinct employment contracts between Kinetic and Mr Kostov. These were separated by a break of service of twenty days on account of Mr Kostov’s resignation (from his casual employment) and his decision to apply for and Kinetics’ decision to re-employ him as the successful candidate to a different (part-time) position;
the meaning of “service” and “continuous service” in the FW Act does not deem this gap period of twenty days; and
resignation and subsequent re-employment breaks continuity of service and did so in this instance.
Whilst accepting that Kinetics’ management failed to undertake proper scrutiny of Mr Kostov’s internal employment record before deciding that he was the successful candidate for the South Australian position (and would not have done so had it checked the record or had Mr Kostov disclosed the circumstances of his resignation and prior final warnings during the interview), this failure on Kinetics’ part does not render the break in service between employment continuous for the purposes of the FW Act.
As Mr Kostov was not employed in continuous service for at least six months prior to his dismissal, he was not protected from unfair dismissal and is not eligible to make the claim. The application should be dismissed.
Mr Kostov
Mr Kostov submits that his employment with Kinetic was continuous because he was transferred from Queensland to South Australia with the result that there was one continuing contract of employment as a bus driver. This contract was from the commencement of his work in July 2022 and ended on 4 October 2024.
In the alternative, the gap period of twenty days is counted as service because he was promised the job in South Australia.
In the further alternative, the gap period of twenty days is counted as service under the FW Act because the parliament intended short periods of absence such as this to not prevent a dismissed employee from making a claim.
Accordingly, Mr Kostov submits that he served more than six months prior to his employment ending on 4 October 2024 and is thus a person protected from unfair dismissal.
Consideration
Legislative provisions
Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment of at least the minimum employment period.
Section 383 sets out the minimum employment period:
“383 Meaning of minimum employment period
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.”
Section 384 provides:
“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.
(2) However:
(a)a period of service as a casual employee does not count towards the employee’s period of employment unless:
(i)the employment as a casual employee was as a regular casual employee; and
(ii)during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and
(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.”
Section 12 defines “service” by referring to “section 22” and “continuous service” as having “a meaning affected by section 22”.
In somewhat curious drafting, s 22 defines “service” but does not define “continuous service” though the phrase is bolded by the legislature in s 22(4)(b) without subsequent definition. Section 22 relevantly provides:
“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;
(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.
(3A)Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies). If they do so, subsection (3) applies accordingly.”
“Service” as an employee for the purposes of s 22 does not require a person to be working on each of the days in the relevant period. Rather, the issue is whether an unbroken employment relationship existed in that period. The reason for this is self-evident. An employee may be rostered off work during a relevant period, not required to work on a day or days during a relevant period, or be taking paid or unpaid leave during a relevant period, yet be in continuous service as an employee. It is a separate issue, addressed by s 22(2), whether a particular day or days in that period are excluded from being counted towards the length of continuous service.
As noted, the phrase “continuous service” (used in s 384) is not defined in the FW Act. However, its ordinary meaning is a period of unbroken service by an employee with an employer.[14] Subject to the statutory exceptions in s 22, “continuous service” for the purposes of ss 384 and 22 of the FW Act requires the employment relationship to have been unbroken. However, as provided by s 384(2)(a), for unfair dismissal purposes regularly and systematically rostered casual employees remain in service notwithstanding that each engagement may be by separate casual contracts provided reasonable expectation of continuing employment on that basis exists. Gaps in time between such contracts do not necessarily break service because it is the employment relationship and not the contract that is assessed for continuity.[15]
For these reasons, the phrases “period of employment” and “continuous service” in s 384 of the FW Act and the phrase “continuous service” in s 22 are best read as relating to a period of an unbroken employment relationship and not necessarily an unbroken employment contract (subject to the further statutory provisions in s 22 which deem certain service to be continuous despite a break in the employment relationship).
It is not in dispute that the period of Mr Kostov’s service as a casual bus driver in Queensland was continuous. I am well satisfied that this was so. He was a regular casual employee with a reasonable expectation of continuing employment on that basis. Whilst the period of unpaid leave granted from 21 June 2024 did not count as a period of service, it was an “unpaid authorised absence” within the meaning of s 22(2)(b) and thus this excluded period did not break service.
However, that period (an unpaid authorised absence) was broken by Mr Kostov’s resignation. I have found that Mr Kostov, whilst on this unpaid absence, resigned on 2 August 2024 from his casual bus driver position, effective that day.
Accordingly the employment relationship ended on 2 August 2024.
I have also found that Mr Kostov was employed on a different employment contract as a part-time bus driver in South Australia twenty days later, on 22 August 2024, following an openly advertised vacancy, application, and interview process. That second contract re-established an employment relationship.
Having been dismissed from this part-time position on 4 October 2024, Mr Kostov will only be eligible to make an unfair dismissal claim if either the twenty days absence is, at law, regarded as a period of service, or at least a period which did not break service.
Was Mr Kostov in a period of “continuous service” in the twenty days between 2 and 22 August 2024?
The answer to this question rests firstly on whether an employment relationship existed between Mr Kostov and Kinetic during this period. This is because “continuous service” for the purpose of s 384 and “service” within the meaning of s 22 means service as an employee. Section 22(1) provides that it must be a period “during which the employee is employed by the employer”. To have been “employed by the employer” requires an employment relationship to have existed in the relevant period.
Mr Kostov relies on Ms Brewer’s letter of 28 June 2024 as evidence that his employment was transferred. More commonly than not, a letter from Kinetics’ human resources department that Mr Kostov “is now being transferred to Olympic Dam…for eight months” would suggest so. However, seen in context and having regard to the evidence overall, I do not find that Mr Kostov was transferred or that his commencement at Olympic Dam on 2 October 2024 was the product of an internal transfer.
Firstly, the letter of 28 June 2024 was written by Ms Brewer solely to assist Mr Kostov to obtain a South Australian licence once she became aware that the South Australian authorities required evidence of work to be performed in the State. Ms Brewer in her evidence recognised that she had not been entirely factual as neither was a position open in South Australia at the time nor had she promised (or had the authority to promise) Mr Kostov that he would fill a vacancy if one arose. Ms Brewer acted unwisely in making the representations she made in the letter. It had the potential to mislead. However, whilst the letter led Mr Kostov to believe that he would be well placed to get a job in South Australia when one became available I do not find that he was promised such employment as he knew that a position at that time had not yet arisen.
Secondly, even if Ms Brewer’s letter can be elevated to a transfer or promise of a transfer, the subsequent events clearly establish that the transfer did not occur. Five weeks later, on 2 August 2024, Mr Kostov resigned in the wake of an advanced show cause process. His resignation was unequivocal. It was not a ‘resignation’ from work in Queensland to South Australia to take up a transfer, but an unqualified “resignation, effective immediately”. I have made findings as to why Mr Kostov resigned and none of the reasons were because he was being transferred. The resignation brought the employment relationship to an end irrespective of whether a transfer had been promised.
Thirdly, nothing in the conduct of the parties between 2 and 22 August 2024 points to a transfer. Mr Kostov did not mention a promised transfer in his job application, in his unsolicited contact with Ms Ismail, or in his interview with Mr Eilers. In this period Kinetic closed Mr Kostov’s employment file and informed him that he would need to apply for what had become a vacant role and subject himself to interview in the usual manner.
Having found that Mr Kostov was not in fact transferred to South Australia from Queensland, the twenty day gap period was not a “period of employment”; rather, it was a period between employment.
Further, the relevant statutory provisions of the FW Act do not deem this period of non-employment to otherwise be service. It was not a period of “unpaid leave”, “authorised absence”, “unpaid authorised absence” or a period provided for in regulations made under the FW Act such that it might be an “excluded period” within the meaning of s 22(b) but nonetheless included as “service”.
The transfer of employment provisions in s 384(2) and s 22(5) of the FW Act similarly do not apply or otherwise operate to deem this gap period as service. Nor was there a transfer of business from one employer to another. Rather, Mr Kostov’s employment with Kinetic ceased at his hand by resignation. The employment relationship was only re-established when Kinetic, some weeks later, offered him, as the successful candidate, a different position in South Australia. That re-employment was not contrived, nor was the resignation induced.
In Tebble v Rizmas Pty Ltd[16] it was held that a voluntary resignation broke service such that subsequent re-employment by the same employer did not render service continuous. Although this was a decision of a single member and decided some time ago, this decision supports the conclusion I have reached; that absent any evidence of a transfer of employment (either by way of internal transfer or within the meaning of the FW Act) or an agreement to resign and be re-employed, a gap in service caused by a voluntary resignation followed by subsequent re-employment, not contrived to avoid statutory obligations, breaks continuous service and is not otherwise deemed as “service” for the purposes of the FW Act.
I note that in a separately decided matter by a different single member in 2012 (Kefer v Tattersalls Holdings Pty Ltd[17]) the conclusion reached in Tebble was questioned in passing[18]. Unlike Tebble where the employee was re-employed by the same employer a fortnight after resigning, the decision in Kefer is clearly distinguishable from the matter currently before me because Kefer concerned a transfer of employment consequent on a transfer of business and the operation of the FW Act’s provisions in that regard. In any event, the observations in Kefer about Tebble were made in obiter.
I have not found that Kinetics’ conduct in any way was an attempt to avoid its statutory obligations or to induce a break in Mr Kostov’s service.
Accordingly, the gap period of twenty days in this matter is not counted as service or continuous service for the purposes of the unfair dismissal provisions of the FW Act.
Nor do I accept Mr Kostov’s submission that the gap period is counted as service because he was promised the job in South Australia. I have not found that he was in fact promised the job in South Australia, or that the events that occurred were a contrivance or that there was an agreement to maintain service following his resignation.
Mr Kostov’s submission that the gap period of twenty days is counted as service under the FW Act because the parliament intended short periods of absence such as this to not bar a dismissed employee from making a claim aligns with the obiter observations made in Kefer. The difficulty with such a submission is that whilst the statutory scheme does evidence an intention to preserve service where certain periods of defined absence occur, the parliament reflects its policy intention in the language it uses in a statute. There is nothing in the language of the FW Act which directly or indirectly can be interpreted to provide that an employee who resigns but is subsequently re-employed by the same employer, after applying for a vacancy in an open process of recruitment, will have their service deemed continuous upon re-employment.
Whilst as observed in Kefer this may result in an anomaly with the different circumstances where an employee resigns but service is deemed continuous because of the operation of the transfer of business or transfer of employment provisions of the FW Act, this is a policy issue for the legislature. It is not for the Commission to strain language beyond its ordinary meaning or interpose statutory language to achieve a particular result.
Conclusion
Because Mr Kostov resigned from earlier employment with Kinetic on 2 August 2024, a gap period of twenty days existed before he was separately re-employed. The period of employment Mr Kostov served prior to dismissal was from 22 August 2024 to 4 October 2024. As this period was less than six months, Mr Kostov was not, at the time of dismissal, a person protected from unfair dismissal. He had not served the minimum employment period of continuous service required by the FW Act.
The jurisdictional objection is upheld. In doing so, I observe that the errors made by Kinetic (Ms Brewer providing a misleading letter on 28 June 2024 and Mr Eilers failing to examine employment records before re-employing) were clearly avoidable and explain Mr Kostov’s sense of grievance. In those respects Kinetic brought these proceedings on itself, irrespective of their merits. Those errors do not however allow the gap period to be characterised at law as something which it was not.
The application is dismissed. An order giving effect to this decision is issued in conjunction with its publication.[19]
DEPUTY PRESIDENT
Appearances:
T. Kostov, on his own behalf.
M. Bicchi, of and on behalf of Kinetic Specialised Resources Pty Ltd
Hearing details:
2025.
Adelaide (video);
22 January.
[1] R8 SG3
[2] A3
[3] A9
[4] R8 SG4
[5] Audio recording 22 January 2024
[6] R8 SG5
[7] R5
[8] R7
[9] R7
[10] R3 SI1
[11] R9 LE1
[12] R10
[13] R9 LE3
[14] Holland v UGL Resources Pty Ltd[2012] FWA 3453, [20]
[15] Shortland v Smiths Snackfood Co Ltd [2010] FWAFB 5709; Flinders Ports Pty Ltd v Woolford [2015] SASCFC 6, [74] per Stanley J with whom Kelly J agreed
[16] [2011] FWA 6853
[17] [2012] FWA 2375
[18] At [41] – [44]
[19] PR783948
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