Ms Rowena Bendror v Ayre Sales Pty Ltd - [2025] FWC 2570

[2025] FWC 2570

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Ms Rowena Bendror
v

Ayre Sales Pty Ltd

(U2025/5467)

COMMISSIONER WALKADEN

SYDNEY, 1 SEPTEMBER 2025

Application for unfair dismissal remedy – Whether the Applicant is a person protected from unfair dismissal – Whether the Applicant has completed a period of employment that is at least the minimum employment period – Whether the Respondent is a small business employer – Whether the Respondent and another company are associated entities – Whether the Applicant was dismissed – Found that the Applicant is a person protected from unfair dismissal

This decision determines a jurisdictional objection made against an application commenced by Ms Rowena Bendror (the Applicant) under section 394 of the Fair Work Act 2009 (FW Act) against her former employer, Ayre Sales Pty Ltd (Ayre / the Respondent).

That jurisdictional objection being whether Ms Bendror was a person protected from unfair dismissal at the time of her dismissal (the PPFUD Objection). In making that jurisdictional objection, the Respondent contended that Ms Bendror’s period of employment with the Respondent was not of at least the minimum employment period.[1] In its response to the application, the Respondent also indicated that it was a small business employer and that Ms Bendror’s dismissal was consistent with the Small Business Fair Dismissal Code (SBFDC).[2]

On 1 July 2025, the application was the subject of a hearing before me. The hearing only concerned the PPFUD Objection. Mr Michael Kriewaldt appeared, with permission granted under section 596(2)(a), for Ms Bendror. Mr Luke Mannion appeared for the Respondent. Mr Mannion is the sole director and Managing Director of the Respondent.[3] Ms Bendror gave evidence and was cross-examined. Mr Mannion and Mr Bernard Pawlowski gave evidence for the Respondent. Mr Pawlowski is an accountant engaged by the Respondent.[4] Both Mr Mannion and Mr Pawlowski were cross-examined. There were no other witnesses called by either party. All the evidence and submissions made by the parties has been considered.

For the reasons explained below, I have dismissed the Respondent’s PPFUD Objection. In considering that objection, it has been necessary to determine whether the Respondent is a small business employer as defined in the FW Act. I have determined that the Respondent is not a small business employer. The PPFUD Objection has been dismissed because I am satisfied that Ms Bendror’s period of employment with the Respondent was at least the minimum employment period.

Legislation

Section 382 of the FW Act provides that a person is protected from unfair dismissal at a time if, at that time:

When a person is protected from unfair dismissal

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i)a modern award covers the person;

(ii)an enterprise agreement applies to the person in relation to the…

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 2570
Decision Date: 1 SEPTEMBER 2025

CaseChat Overview and Summary

This decision concerns an application brought by Ms Rowena Bendror against her former employer, Ayre Sales Pty Ltd, under section 394 of the Fair Work Act 2009 (FW Act) for an unfair dismissal remedy. Ayre Sales Pty Ltd objected to the application on jurisdictional grounds, contending that Ms Bendror was not a person protected from unfair dismissal as defined by section 382 of the FW Act. The central issue was whether Ms Bendror had completed a minimum employment period with Ayre Sales Pty Ltd, which varies depending on whether the employer is a small business. The Fair Work Commission found that Ayre Sales Pty Ltd is not a small business employer because it is associated with Gilbert & Younan, exceeding the employee threshold. Furthermore, the Commission found that Ms Bendror was not dismissed on 9 June 2024, contrary to Ayre Sales Pty Ltd's claims. This conclusion was based on Ms Bendror continuing to work and receive wages after the alleged dismissal date. The Commission determined that Ms Bendror's period of employment with Ayre Sales Pty Ltd satisfied the minimum employment period, dismissing the jurisdictional objection and allowing the application to proceed.

Orders