Ms Rowena Bendror v Ayre Sales Pty Ltd
[2025] FWC 2570
•1 SEPTEMBER 2025
| [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 employment;
(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold
The PPFUD Objection was contested by reference to section 382(a) of the FW Act. The Respondent does not dispute that section 382(b) of the FW Act had been satisfied.
The minimum employment period is defined at section 383 of the FW Act.[5] Section 383 is reproduced below:
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.
A small business employer is defined at section 23 of the FW Act.[6] Section 23 of the FW Act is reproduced below:
Meaning of small business employer
(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.
(2) For the purpose of calculating the number of employees employed by the employer at a particular time:
(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and
(b) a casual employee is not to be counted unless, at that time, the employee is a regular casual employee of the employer.
(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.
(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):
(a)the employee who is being dismissed or whose employment is being terminated; and
(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.
Section 23(3) of the FW Act refers to associated entities. Associated entities has the meaning given by section 50AAA of the Corporations Act 2001.[7] Section 50AAA of the Corporations Act 2001 is reproduced below:
Meaning of associated entity
(1) One entity (the associate) is an associated entity of another entity (the principal) if subsection (2), (3), (4), (5), (6) or (7) is satisfied.
(2) This subsection is satisfied if the associate and the principal are related bodies corporate.
(3) This subsection is satisfied if the principal controls the associate.
(4) This subsection is satisfied if:
(a) the associate controls the principal; and
(b) the operations, resources or affairs of the principal are material to the associate.
(5) This subsection is satisfied if:
(a) the associate has a qualifying investment (see subsection (8)) in the principal; and
(b) the associate has significant influence over the principal; and
(c) the interest is material to the associate.
(6) This subsection is satisfied if:
(a) the principal has a qualifying investment (see subsection (8)) in the associate; and
(b) the principal has significant influence over the associate; and
(c) the interest is material to the principal.
(7) This subsection is satisfied if:
(a) an entity (the third entity) controls both the principal and the associate; and
(b) the operations, resources or affairs of the principal and the associate are both material to the third entity.
(8) For the purposes of this section, one entity (the first entity) has a qualifying investment in another entity (the second entity) if the first entity:
(a) has an asset that is an investment in the second entity; or
(b) has an asset that is the beneficial interest in an investment in the second entity and has control over that asset.
Section 50AAA refers to control, which, for present purposes, is a term defined at section 50AA of the Corporations Act 2001.[8] The definition of control is reproduced below:
50AA Meaning of control
(1)For the purposes of this Act, an entity controls a second entity if the first entity has the capacity to determine the outcome of decisions about the second entity's financial and operating policies.
(2)In determining whether the first entity has this capacity:
(a) the practical influence the first entity can exert (rather than the rights it can enforce) is the issue to be considered; and
(b) any practice or pattern of behaviour affecting the second entity's financial or operating policies is to be taken into account (even if it involves a breach of an agreement or a breach of trust).
(3)The first entity does not control the second entity merely because the first entity and a third entity jointly have the capacity to determine the outcome of decisions about the second entity's financial and operating policies.
If the first entity:
(a)has the capacity to influence decisions about the second entity's financial and operating policies; and
(b)is under a legal obligation to exercise that capacity for the benefit of someone other than the first entity's members;
the first entity is taken not to control the second entity.
A period of employment is defined at section 384 of the FW Act.[9] Section 384(1) of the FW Act provides “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”. It is unnecessary to consider section 384(2) because Ms Bendror was not a casual employee[10] or a transferring employee.
Relevant facts and findings on contested facts
There are several contested facts that are significant to the determination of the PPFUD Objection. The below summary of the facts includes facts that were both uncontested and contested. The contested facts are expressly identified below.
There was no dispute between the parties, and I find, that Ms Bendror commenced employment with the Respondent on 29 March 2023.[11] Ms Bendror was provided with a letter of offer dated 8 March 2025, which confirmed that Ms Bendror would commence employment in the week commencing 27 March TBC.[12] At the top of the letter of offer are the words ‘GILBERT + YOUNAN’ and a company logo, which appears to be the letter G with a series of the letter Y’s enclosed in the G. At the footer on the letter of offer are these words:
GILBERT + YOUNAN
1/125 Argyle Street
CAMDEN NSW 2570
PO Box 561, CAMDEN NSW 2570
T +61 4648 4058
E: [email protected]
Gilbert & Younan Pty Ltd ABN 26 917 383 845 Trading as Gilbert & Younan & AYRE Sales Pty Ltd ABN 93 634 685 484 Trading as Gilbert & Younan Sales
Ms Bendror’s contract of employment was before me (Contract).[13] In bold letters at the top of the cover page of the Contract[14] are the words ’AYRE SALES PTY LTD T/AS GILBERT & YOUNAN SALES’. Below those words are the words ’GILBERT + YOUNAN’ and the same company logo that was on the letter of offer. The parties to the Contract were defined as Ms Bendror and the Respondent, which is described in the Contract as trading as ’Gilbert & Younan Sales’.[15] Mr Mannion signed the Contract for the Respondent.[16] The Contract records that Ms Bendror was employed in a full-time capacity.[17] The Contract records that the position held by Ms Bendror was a ’Real Estate Employee Level 3 (Supervisory Level)’.[18] Ms Bendror described the role she held as a ’Sales Agent’.[19] Mr Mannion described the role as a ’Project Sales Agent’.[20] The difference in title is immaterial.
There was no real dispute between the parties as to the duties that Ms Bendror performed for the Respondent in the period from 29 March 2023 until Sunday 9 June 2024. In that period, Ms Bendror was primarily responsible for selling land lots at the Ashbourne Estate in Moss Vale, New South Wales. Novm is the property developer of the Ashbourne Estate. During this period, the Respondent and Novm (which was also referred to in the material before me as Aoyuan Australia) were parties to a contract whereby the Respondent would sell land lots on the Ashbourne Estate. In her role in this period, Ms Bendror worked from Novm’s Sales and Information Centre, which was on or near the Ashbourne Estate in Moss Vale.[21]
There was no dispute between the parties that the contract between the Respondent and Novm was ended by Novm on 29 May 2024.[22]
There was no dispute between the parties, and I find, that Ms Bendror met with Mr Mannion on 30 May 2024. The differences between Ms Bendror’s evidence[23] of this meeting and Mr Mannion's evidence[24] of this meeting are minor and immaterial. Both Ms Bendror’s evidence and Mr Mannion's evidence are consistent with the email sent by Mr Mannion to Ms Bendror at 11:07 a.m. on Tuesday 4 June 2024 (4 June Email).[25] I find the words spoken at the meeting held on 30 May 2024 to be consistent with the 4 June Email. The 4 June Email is reproduced below:
Hi Rowena,
As discussed in person at our meeting of 30th May.
The sales contract between AYRE and NOVM has been terminated with 14 days, notice as per the terms of the agency agreement between the 2 companies.
Unfortunately, this means that your current role is now redundant and your employment with AYRE will cease on Sunday 9th June following your last shift at the sales centre.As further discussed, I am exploring further employment opportunities for you within the company and look forward to meeting with you tomorrow in that regard.
Best Regards
Luke
There was no dispute between the parties, and I find, that Ms Bendror met with Mr Mannion and Ms Anna Younan on 5 June 2024. Ms Younan is recorded on the Gilbert + Younan website as a ‘Principal / Sales Agent’.[26] Ms Bendror‘s evidence of this meeting[27] was not contradicted or challenged by the Respondent. I accept Ms Bendror’s evidence of this meeting, which is consistent with an email sent by Mr Mannion to Ms Bendror, which was copied to Ms Younan, at 3:13 p.m. on Thursday 6 June 2024.[28] The email is reproduced below:
Hi Rowena,
Thank you for meeting with us yesterday.
We are pleased to offer you a position as Associate Agent within our team, primarily working in the residential sales division.The following information sets out the terms and conditions of that offer.
Title of position: Associate Agent (full time)
Location: Predominantly in the Camden office or as the role requires
Commencement Date: Week Commencing 17th June TBC
Salary: $80,000 Package inclusive of superannuation and any applicable
allowances. (this is the same as your current role)
Commission: 10% of Net office commission for Self-Generated leads. 50% of first weeks rent for property management referrals
Key Performance Indicators: 35 connected outbound prospecting calls per day to homeowners, 5 qualified listing appointments generated per week with clients who will list their home for sale in the next 60 Days.
Additionally, your role will entail working with buyers, returning enquiries, attendance at creative appointments and professional inspections and other roles as directed from time to time. While the additional activities are vital and must be completed to an acceptable level, the key performance indicators will need to be met so the business can justify the creation of this role.
If you have any questions, please let us know and should you wish to proceed we will generate employment contracts that will set out the expectations in more detail for you to review We are confident you will make a valuable addition to our team and we also believe we will be able to contribute significantly to your growth in the industry.
Luke Mannion
Managing Director
Head of Projects
Gilbert+ Younan
There was no dispute between the parties that Ms Bendror accepted the position of Associate Agent. The Respondent did not contradict or challenge Ms Bendror’s evidence that she accepted the position by email sent on 6 June 2024.[29]
In her role as Project Sales Agent selling land lots at the Ashbourne Estate in Moss Vale, Ms Bendror worked from Thursday to Sunday.[30] Ms Bendror‘s evidence was that her final shift in that role was worked on Sunday 9 June 2024.[31] The Respondent did not challenge or contradict that evidence. I find that Ms Bendror worked in the role of Project Sales Office on the Ashbourne Estate up until and including Sunday 9 June 2024.
At this point, it should be noted that one of the two grounds on which the Respondent advances the PPFUD Objection is that the Respondent submits that Ms Bendror was dismissed on 9 June 2024.[32] The question of whether Ms Bendror was dismissed on 9 June 2024 is dealt with later in this decision.
Monday 10 June 2024 was a public holiday in the State of New South Wales. It was the King’s Birthday public holiday. As explained, it was one day after the day that the Respondent submits that Ms Bendror had been dismissed. Ms Bendror’s pay slip for the pay period 7 June 2024 to 20 June 2024 was before me.[33] The pay slip clearly records that Ms Bendror was paid wages for the public holiday. The Respondent did not challenge or contradict that business record. In cross-examination, Mr Mannion effectively said that he was unaware whether Ms Bendror was entitled to payment for the public holiday or that the public holiday may have been paid in error.[34] I find based on the pay slip, which was not contradicted or challenged, that Ms Bendror was paid wages for the public holiday on Monday 10 June 2024. I do not accept Mr Mannion’s evidence given under cross-examination on this issue.[35] In particular, I do not accept the evidence given by Mr Mannion that ”our pay week ends on a Tuesday, and I don’t know whether that means Rowena was entitled to be paid on that day”. Clearly, an employee that has been dismissed is not entitled to be paid for a public holiday that occurs on a day after they have been dismissed. The day that the pay week ends is completely irrelevant. From observing Mr Mannion give evidence and make submissions, it is my view that Mr Mannion knew that an employee that has been dismissed is not entitled to be paid for a public holiday that occurs on a day after they have been dismissed. Notwithstanding that knowledge, Mr Mannion answered the question in the way that he did because he thought that accepting the obvious – that payment of the public holiday to Ms Bendror would suggest that she was not dismissed on 9 June 2024 – would undermine one of the Respondent’s primary arguments. Rather, than make the appropriate and necessary concession, Mr Mannion sought to prevaricate and evade the question. This is just one example that leads me to find that Mr Mannion’s evidence was not reliable or truthful.
In her statement filed and served in advance of the hearing (and consistent with my directions), Ms Bendror explained[36] that in the period from 11 June 2024 to 14 June 2024, with 15 June 2024 and 16 June 2024 being the weekend:
(a) I retained my work laptop and mobile phone and continued to respond to emails and calls Even though the Ayre Sales contract had ended at Novm, as the onsite agents we had a top list of purchasers that we had exclusive rights to for the next month. We also had our purchasers that had deposited and exchanged on the land who were still communicating with us. Luke had stated he would like me to keep following up on those purchasers to see if we could sell before the new agents started calling them. I note that after Luke signed a non-exclusive agency agreement with Novm for Ayre Sales to continue to sell land lots, I continued to do so for a few months following the exit on site at the Ashbourne estate;
(b) I was of the understanding Luke just needed a few days to prepare for me to start in the new Camden location and given it was a short week, it was better to commence there the following Monday, 17 June 2024
(c) I understood that I was still employed by Ayre Sales;
(d) I was not provided with a termination letter or separation certificate;
(e) I believe that I continued to be paid my usual salary – I do not have a copy of the relevant payslips in my possession, however a copy of my bank statements showing net payments I received from Ayre Sales from 9 May 2024 to 4 July 2024 are attached and marked “RB5”;and
(f) I do not believe that I was paid out my accrued annual leave entitlements or payment in lieu of notice – a screenshot of my income statement for the period 1 July 2023 to 30 June 2024, which I note does not contain an entry for “Unused leave on termination” and refers to the “period” as 1 July 2023 to 30 June 2024, is attached and marked “RB-6”.
At the hearing, Ms Bendror was asked what she was doing in the period from 11 June 2024 to 16 June 2024. Ms Bendror’s answer to that question[37] is reproduced below:
“So after I finished at the sales and information centre, I still had my laptop during that week, my mobile phone, and was still just working for the four days that week from home following up on leads for – from the land sales. Because we still had an exclusive period that we could still have access to our top clients that we'd submitted to Novm. So I was just following up on sales for that, and also there were still some land lots that hadn't exchanged yet. There were deposits in on them, but they were still just with the lawyers, so I was just working on those and just working from home.”
The Respondent did not challenge or contradict Ms Bendror’s evidence that in the period from 11 June 2024 to 16 June 2024 that she retained her work laptop and mobile phone. The Respondent did not challenge or contradict Ms Bendror’s evidence that she worked for the Respondent in that period. In cross-examination, Mr Mannion confirmed that he did not give Ms Bendror a written or oral direction to cease work in the period from 9 June 2024 to 15 June 2024.[38] Based on those matters, I find that in the period from 11 June 2024 to 16 June 2024 that Ms Bendror retained and used her work laptop, work issued mobile phone and performed work for the Respondent.
I have already referred to Ms Bendror’s pay slip for the pay period 7 June 2024 to 20 June 2024 that was before me.[39] There is one other payment recorded on that pay slip that warrants consideration. That is, the pay slip records a balance of 7.0550 hours in annual leave. An employee that is dismissed should be paid out their untaken annual leave and not be left with a balance. I find based on the pay slip, which was not contradicted or challenged, that Ms Bendror was not paid her untaken annual leave after her purported dismissal on 9 June 2024. In cross-examination, Mr Mannion confirmed that he understood that when terminating an employee that the business is required to pay out entitlements such as annual leave.[40] When questioned at the hearing why Ms Bendror was not paid out her untaken annual leave after her purported dismissal on 9 June 2024, Mr Mannion suggested that it was an error and that he asked the accountants to pay Ms Bendror all of her entitlements.[41] Mr Mannion did not rely upon anything in writing, such as an email to the accountants, which might have supported his evidence that he asked the accountants to pay the Applicant all of her entitlements. The letter from Mr Pawlowski dated 23 June 2025[42] does not establish that Mr Mannion asked the accountants to pay Ms Bendror all of her entitlements. The letter only describes an error, which I will deal with later in this decision. I do not accept Mr Mannion’s evidence that he asked the accountants to pay Ms Bendror all of her entitlements. I consider that Mr Mannion gave that evidence because he thought that the fact Ms Bendror was not paid her untaken annual leave after her purported dismissal undermines one of the Respondent’s primary arguments. This is another example that leads me to find that Mr Mannion’s evidence was not reliable or truthful.
The pay slip for the pay period 7 June 2024 to 20 June 2024[43] also records that Ms Bendror was paid her usual wages for the entire period. I find based on the pay slip, which was not contradicted or challenged, that Ms Bendror was paid her usual wages in this period, which includes a period after her purported dismissal on 9 June 2024.
There was no dispute between the parties, and I find, that Ms Bendror commenced in the role of Associate Agent with the Respondent on 17 June 2024.[44] Ms Bendror‘s evidence was that on starting in that role she was not issued with a new contract of employment.[45] Mr Mannion accepted that.[46] I find that on starting in the role of Associate Agent that Ms Bendror was not issued with a new contract of employment. I also find that the base salary received by the Applicant for the period that she worked as the Associate Agent was identical to the base salary that she received for the period that she worked as a Project Sales Agent.[47] Ms Bendror’s evidence was that in performing her duties as an Associate Agent that she used the same laptop, same mobile phone, same mobile phone number, email address and business cards that she used when she performed duties as a Project Sales Agent.[48] The Respondent did not challenge or contradict that evidence. I find that the same laptop, same mobile phone, same mobile phone number, email address and business cards was used by Ms Bendror when performing the roles of Project Sales Agent and then Associate Agent.
I find that there were some differences between the two roles. One, being that Ms Bendror performed the Associate Agent role from Gilbert + Younan’s office in Camden, New South Wales.[49] Two, the Associate Agent role appeared to be primarily focused on residential properties.[50]
There was no dispute between the parties, and I find, that Ms Bendror was dismissed by the Respondent on 14 April 2025.[51]
Contentions of the parties
Mr Kriewaldt for Ms Bendror submitted that the Commission should find that Ms Bendror was a person protected from unfair dismissal within the meaning of section 382 of the FW Act and dismiss the PPFUD Objection. That submission was advanced on several grounds.
The first ground was premised on a finding that the Respondent was not a small business employer as defined by section 23 of the FW Act. The Applicant made two submissions in support of that finding being made.
One, that Gilbert & Younan Pty Limited (Gilbert & Younan) is an associated entity of the Respondent by reason of section 50AAA(7) of the Corporations Act. The Applicant contended that section 50AAA(7) of the Corporations Act was satisfied because Mr Mannion (being the third entity) controls both the Respondent and Gilbert & Younan, and the operations, resources or affairs of the Respondent and Gilbert & Younan are material to Mr Mannion.[52] The Applicant further contended that the evidence established that the combined number of employees of the Respondent and Gilbert & Younan as at 14 April 2025 (which is the ‘end date’ for the purpose of determining the minimum employment period)[53], was at least 15 employees.[54] This was described as the positive case by Mr Kriewaldt in his oral submissions at the hearing.[55] Consequently, the Applicant contended that on this positive case that the Commission should find that the Respondent was not a small business employer and that in accordance with section 383(a) of the FW Act, the relevant minimum employment period was 6 months ending at the earlier of the times referred to in section 383(a) of the FW Act.
Two, that the onus rests with the Respondent to establish as a matter of fact that the number of employees of the Respondent and its associated entities as at 14 April 2025 was fewer than 15.[56] In making that submission, the Applicant relied on several decisions of the Commission.[57] The Applicant pointed to a number of entities that it submitted were associated entities of the Respondent.[58] The Applicant contended that the Respondent failed to discharge the onus and did not produce any evidence to the Commission establishing the number of employees of those entities.[59] This was described as the negative case by Mr Kriewaldt in his oral submissions at the hearing.[60] In the circumstances, the Applicant contended that a Jones v Dunkel inference should be drawn against the Respondent and Ms Bendror’s evidence as to the number of employees of the Respondent and its associated entities should be preferred.[61] Consequently, the Applicant contended that on this negative case that the Commission should find that the Respondent was not a small business employer and that in accordance with section 383(a) of the FW Act, the relevant minimum employment period was 6 months ending at the earlier of the times referred to in section 383(a) of the FW Act.
The Applicant contended that on either the positive case or the negative case that the relevant minimum employment period was satisfied. That is because it was agreed by the parties that Ms Bendror was employed by the Respondent for a period that included the period from 17 June 2024 until 14 April 2025, which was the period where Ms Bendror performed work as an Associate Agent.
The second ground was put in the alternate and premised on a finding that the Respondent was a small business as defined by section 23 of the FW Act.[62] That finding produces the result that the relevant minimum employment period was one year. The second ground is an argument that Ms Bendror was not dismissed on 9 June 2024 and that her period of employment was from 29 March 2023 until 14 April 2025.[63] That period of employment satisfies the minimum employment period in section 383(b) of the FW Act.
The third ground was put further in the alternate and on the same premise as the second ground. The third ground further proceeds on the basis that it is found (contrary to the Applicant’s submissions) that Ms Bendror was dismissed on 9 June 2024. The third ground is an argument that the period from 9 June 2024 until 17 June 2024 did not break Ms Bendror’s period of continuous service with the Respondent.[64] As such, the Applicant contends that Ms Bendror‘s period of employment was from 29 March 2023 until 14 April 2025, which is a period that satisfies the minimum employment period in section 383(b) of the FW Act.
Mr Mannion for the Respondent submitted that the Commission should find that Ms Bendror was not a person protected from unfair dismissal within the meaning of section 382 of the FW Act and uphold the PPFUD Objection.
The Respondent submitted that it was a small business employer as defined at section 23 of the FW Act.[65] Mr Mannion contended that Gilbert & Younan was not an associated entity of the Respondent.[66] In making this oral submission at the hearing, Mr Mannion referred to the relevant sections in the Corporations Act.[67] Mr Mannion disavowed that he controls Gilbert & Younan, and said that there were no employees of the other entities referred to by the Applicant.[68] It was for those reasons that Mr Mannion contended that the applicable minimum employment period was one year in accordance with section 383(b) of the FW Act. Mr Mannion continued that Ms Bendror was dismissed on 9 June 2024 and that broke her period of continuous service.[69] Mr Mannion concluded that Ms Bendror’s period of employment was from 17 June 2024 until 14 April 2025, which was less than the minimum employment period.
Consideration
The determination of the PPFUD Objection requires consideration of three questions:
a) whether the Respondent was a small business employer as at 14 April 2025.
b) whether Ms Bendror was dismissed on 9 June 2024.
c) if Ms Bendror was dismissed on 9 June 2024, whether the period between 9 June 2024 until 17 June 2024 broke Ms Bendror’s period of continuous service.
If that first question is resolved in favour of Ms Bendror, the PFFUD Objection must be dismissed. That is because Ms Bendror’s period of employment with the Respondent – irrespective of whether she was dismissed on 9 June 2024 - clearly satisfies the relevant minimum employment period in section 383(a) of the FW Act. If that first question is resolved in favour of the Respondent, the relevant minimum employment period is one year as per section 383(b) of the FW Act.
If that second question or third question are resolved in favour of Ms Bendror, the PPFUD Objection must be dismissed. That is because Ms Bendror’s period of employment with the Respondent clearly satisfies the minimum employment period – irrespective of whether the minimum employment period is the period in section 383(a) or (b) of the FW Act.
It is only if all three questions are resolved in favour of the Respondent that the PFFUD Objection can be upheld.
These questions are considered below.
Whether the Respondent was a small business employer as at 14 April 2025
Mr Mannion is the sole director and company secretary of the Respondent.[70] Mr Mannion is the sole director and shareholder of Luke Mannion Real Estate Pty Ltd (LMRE), [71] which is the sole shareholder of the Respondent.[72] Mr Mannion accepted, and I find, that he is, and was, the Managing Director of the Respondent.[73] I am satisfied based on Mr Mannion’s ultimate ownership of the Respondent and on the roles that Mr Mannion holds with the Respondent that Mr Mannion controls the Respondent. That is because the ultimate ownership, and director and management roles held by Mr Mannion plainly give Mr Mannion the capacity to determine the outcome of decisions about the Respondent’s financial and operating policies. For those same reasons, I am satisfied that the operations, resources and affairs of the Respondent are material to Mr Mannion.
The real issue in contest is whether Mr Mannion also controls Gilbert & Younan, and whether the operations, resources and affairs of the Respondent are material to Mr Mannion. If both questions are answered in the affirmative, the Respondent and Gilbert & Younan will be associated entities within the meaning of section 50AAA(7) of the Corporations Act. For present purposes, the reference to a ‘third entity’ in 50AAA(7) of the Corporations Act extends to a natural person, such as Mr Mannion.[74]
The Full Court of the Federal Court of Australia has confirmed that the reference to an ‘associated entity’ in section 50AAA of the Corporations Act is an expression of wide scope.[75]
At 3:46 p.m. on 25 June 2025, Mr Mannion sent an email to my Chambers,[76] which said:
Ayre [i.e. the Respondent] has no associated entities as defined by section 50AAA of the Corporations Act that had employees as at 14 April 2025.
I do not accept that statement was accurate.
Following that email from Mr Mannion, the Applicant filed and served a witness statement in reply from Ms Bendror[77] and an outline of submissions in reply.[78] That material went into considerable detail about Mr Mannion’s business interests. That material establishes, and I find, that:
a) Mr Mannion is a 50% shareholder in Gilbert & Younan.[79]
b) Mr Mannion is a co-director (along with Tanya Houghton) of Gilbert & Younan.[80]
c) Mr Mannion is the company secretary of Gilbert & Younan.[81]
d) The Respondent and Gilbert & Younan share the same principal place of business.[82]
The trading name of the Respondent is Gilbert + Younan Sales.[83] Gilbert & Younan Pty Limited (referred to in this decision as Gilbert & Younan) trades as Gilbert + Younan.[84]
In her reply witness statement, Ms Bendror gave evidence that on the evening of 26 June 2025 that a google search led her to the Gilbert + Younan website: Ms Bendror explained that clicking on the “Team” tab in the top right corner took her to a webpage: Ms Bendror attached to her reply statement, a screenshot of that webpage (Team Webpage).[85] Ms Bendror was not challenged on that evidence in cross-examination, nor was that evidence otherwise contradicted by the Respondent. I accept that evidence. The screenshot of the Team Webpage taken by Ms Bendror on the evening of 26 June 2025 displays the name, position and contact details, along with a photograph of 12 people.[86] The persons displayed include seven people that Mr Mannion accepted in cross-examination where employees of Gilbert & Younan:[87]
a) Tanya Gilbert;
b) Briony McLachlan;
c) Cassandra Phillips;
d) Shayla Grenyer;
e) Claudia Vella;
f) Brooke Miller; and
g) Jessica Smith.
Mr Mannion is displayed on the Team Webpage.[88] Mr Mannion is recorded as being the ’Managing Director / Head of Projects’. In answer to questions from me at the hearing, Mr Mannion confirmed[89] that his usual email signature is:
Luke Mannion
Managing Director
Head of Projects
Gilbert + Younan
[phone number redacted]
In cross-examination, Mr Mannion was taken to the Team Webpage. Notwithstanding that the Gilbert + Younan website includes employees of both the Respondent and Gilbert & Younan, Mr Mannion said that he was the Managing Director of the Respondent only, and not Gilbert & Younan.[90]
In her reply witness statement, Ms Bendror discussed Mr Mannion’s involvement in the operations of the Respondent and Gilbert & Younan. The Respondent and Gilbert & Younan are housed in the same office in Camden, New South Wales.[91] In her reply witness statement, Ms Bendror said that “Luke ran the Camden Office. I considered him the most senior person on site”.[92] Ms Bendror was not challenged on that evidence in cross-examination. However, it appears from Mr Mannion’s cross-examination of Ms Bendror, his own cross-examination and submissions at the hearing, that Mr Mannion does not accept that. At the hearing, Mr Mannion described himself as an investor and advisor with respect to Gilbert & Younan,[93] and said that he did not have any control over Gilbert & Younan,[94] and that he was the Managing Director of the Respondent only and that another unnamed person was the Managing Director of Gilbert & Younan.[95] Mr Mannion’s explanation for the Team Webpage identifying him as the Managing Director of the Gilbert + Younan website was a ”marketing self-promotion term, and for brevity to note that it is just a sales business...”.[96]
Having observed and considered Ms Bendror’s evidence and Mr Mannion’s evidence (and submissions), I do not accept Mr Mannion’s evidence (and submissions) about his involvement in the operations of Gilbert & Younan as being reliable or truthful. I prefer Ms Bendror’s evidence over Mr Mannion’s evidence as to Mr Mannion’s involvement in the operations of the Respondent and Gilbert & Younan. My preference for Ms Bendror’s evidence that Mr Mannion was the most senior person with respect to the operations of both the Respondent and Gilbert & Younan is consistent with how Mr Mannion presented himself to the world. It is clear from Mr Mannion’s profile on the Team Webpage and through his email signature that Mr Mannion presented himself as being the Managing Director of both the Respondent and Gilbert & Younan.
I am satisfied based on Mr Mannion’s 50% ownership of Gilbert & Younan, his directorship of Gilbert & Younan and on my finding that he is the Managing Director and most senior person with respect to the operations of Gilbert & Younan that Mr Mannion controls Gilbert & Younan within the meaning of section 50AA of the Corporations Act. Control does not require majority ownership. Control is not to be assessed by reference to rights that an entity such as Mr Mannion can enforce. As much is clear from section 50AA(2) of the Corporations Act. In determining whether Mr Mannion can determine the outcome of decisions about Gilbert & Younan’s financial and operating policies, the practical influence that Mr Mannion can exert is the issue to be considered. I am satisfied based on Mr Mannion’s 50% ownership, directorship and because he is the Managing Director and the most senior person responsible for the operations of Gilbert & Younan that the practical influence that Mr Mannion can exert gives him the capacity to determine the outcome of decisions about Gilbert & Younan’s financial and operating policies. For those same reasons, I am satisfied that the operations, resources and affairs of Gilbert & Younan are material to Mr Mannion.
My findings that Mr Mannion controls both the Respondent and Gilbert & Younan, and that the operations, resources or affairs of both the Respondent and Gilbert & Younan are material to Mr Mannion leads me to conclude that the Respondent and Gilbert & Younan are associated entities.
That conclusion is consistent with the facts that were before me. The facts clearly establish that the Respondent and Gilbert & Younan essentially operate as one business. In cross-examination, Mr Mannion accepted that the Respondent and Gilbert & Younan represent to the world that they are essentially one business.[97]
This is evident from the sharing of resources between the Respondent and Gilbert & Younan. Mr Mannion accepted that the Respondent and Gilbert & Younan share the same email, business cards,[98] work events,[99] and have a shared letterhead.[100] When asked in cross-examination about the shared letterhead, Mr Mannion suggested that the letterhead was a shared one between the Respondent and Gilbert & Younan as a ”cost savings measure”.[101] I do not accept that evidence. In my view, the shared letterhead is reflective of the fact that the Respondent and Gilbert & Younan represent to the world that they are essentially the one business. I consider that Mr Mannion’s evidence about the shared letterhead was an attempt to evade that conclusion being drawn. This is another example that leads me to find that Mr Mannion’s evidence was not reliable or truthful.
The sharing of resources between the Respondent and Gilbert & Younan was not limited to the matters identified in the above paragraph. In her reply witness statement, Ms Bendror explained that on commencing employment with the Respondent that she was given an employee handbook to sign and return. The Employee Handbook was before me. It is approximately 52 pages.[102] The Employee Handbook defines an Employee as: “any person who is directly employed with our Agency under a contract of employment“.[103] The Employee Handbook defines the Agency as: ”Gilbert & Younan Pty Ltd t/as Gilbert + Younan”.[104] In summary terms, the Employee Handbook regulates the conduct of employees at work, and details employee entitlements such as leave. Employees are required to comply with the Employee Handbook.[105] Ms Bendror was not employed by the entity defined as the Agency in the Employee Handbook. She was employed by the Respondent. Notwithstanding that fact, Ms Bendror’s unchallenged evidence (which I accept) was that she given the Employee Handbook on commencing employment with the Respondent to sign and return.[106] Ms Bendror signed the Employee Handbook as an employee.[107] These facts further demonstrate that the Respondent and Gilbert & Younan essentially operate as one business.
In her reply witness statement, Ms Bendror gave evidence about her interactions with the seven Gilbert & Younan employees referred to above.[108] Ms Bendror was cross-examined about that evidence. However, Mr Bendror’s evidence about her interactions with those employees of Gilbert & Younan was not seriously challenged or contradicted. I accept Ms Bendror’s evidence. That evidence establishes that Ms Bendror as an employee of the Respondent regularly and routinely interacted with those seven Gilbert & Younan employees about work matters. That evidence further reinforces that the Respondent and Gilbert & Younan essentially operate as one business.
My finding that the Respondent and Gilbert & Younan essentially operate as one business is not a factor that I have taken into account in determining whether the Respondent and Gilbert and Younan are associated entities. I have reached the conclusion that the Respondent and Gilbert & Younan are associated entities for the reasons explained at paragraphs 57 – 58 above. The point, however, is that the fact that Respondent and Gilbert & Younan essentially operate as one business is not at odds with my conclusion that the Respondent and Gilbert & Younan are associated entities.
A consequence of my finding that the Respondent and Gilbert & Younan are associated entities is that I am satisfied that the Respondent is not a small business employer within the meaning of section 23 of the FW Act. This is because as at 14 April 2025, on Mr Mannion’s evidence, there were eight employees of the Respondent (including Ms Bendror)[109] and seven employees of Gilbert & Younan.[110] That is, the Respondent did not employ fewer than 15 employees.
Section 383(a) of the FW Act provides that the minimum employment period if the employer is not a small business employer is 6 months ending at the earlier of times mentioned in that section. It is not contested, and I find, that Ms Bendror satisfies that minimum employment employment period. As I will discuss in greater detail below, the length of Ms Bendror’s period of employment is contested. However, it is not contested, and I find, that Ms Bendror’s period of employment at least included the period from 17 June 2024 to 14 April 2025. That period satisfies the relevant minimum employment period given my finding that the Respondent is not a small business employer. On that basis, I conclude that Ms Bendror is a person protected from unfair dismissal and dismiss the PPFUD Objection.
As explained above, the Applicant contended that the same conclusion should be reached on what was explained by Mr Kriewaldt as being the ‘negative case’. I agree that the Respondent bears the onus and did not produce any evidence to the Commission disclosing the number of employees of other entities associated with Mr Mannion. Given that Mr Mannion himself accepted in cross-examination that the Respondent and Gilbert & Younan represent to the world that they are essentially one business,[111] at the very least, the Respondent should have been forthcoming with the Commission about the number of employees of those other entities. The Respondent’s failure in that respect required Ms Bendror go into considerable detail in a reply statement and written submissions in reply about Mr Mannion’s business interests.
In his closing oral submissions at the hearing, Mr Mannion said that the other entities referred to by the Applicant, with the exception of the Respondent and Gilbert & Younan, did not have any employees.[112] I note that the material put before me by Ms Bendror does not identify any potential employees of any of those other entities, other than the Respondent and Gilbert & Younan. As such, I am prepared to accept that those other entities, other than the Respondent and Gilbert & Younan, do not appear to have any employees. In those circumstances, I do not consider it appropriate to draw the Jones v Dunkel inference against the Respondent. Given I have already concluded that the Respondent is not a small business employer, and that Ms Bendror is a person protected from unfair dismissal and consequently that I have determined to dismiss the PPFUD Objection, I also consider it unnecessary to draw such an inference.
Whether Ms Bendror was dismissed on 9 June 2025
The meaning of dismissed is set out at section 386 of the FW Act.
It is clear from Mr Mannion’s answers in cross-examination[113] and his oral submissions at the hearing[114] that the Respondent relies on the meeting held between Mr Mannion and Ms Bendror on 30 May 2024, and 4 June Email[115] as evidencing that Ms Bendror was dismissed with effect from 9 June 2025. It is understood based on Mr Mannion’s evidence and submissions that the Respondent contends that Ms Bendror was dismissed on 9 June 2025 within the meaning of section 386(1)(a) of the FW Act.
A Full Bench of the Commission in Mohammed Ayub v NSW Trains[116] explained that the general principle at common law was to effect the termination of a contract of employment, an employer must, subject to any express provision in the contract, communicate to the employee by plain or unambiguous words or conduct that the contract is terminated.[117] The Full Bench found that the termination of an employment relationship and the termination of an employment contract are different concepts, however, the relevant legal principles that are applicable to the termination of an employment contract are equally applicable to the termination of the employment relationship.[118]
It is clear that the Respondent through words or conduct did not communicate to Ms Bendror that she was dismissed on 9 June 2024.
One, I have made findings above about the meeting held between Mr Mannion and Ms Bendror on 30 May 2024. I have found that the words spoken at the meeting held on 30 May 2024 to be consistent with the 4 June Email.[119] The words spoken at that meeting and the 4 June Email do not plainly or unambiguously state that Ms Bendror was to be dismissed with effect from Sunday 9 June 2025. Is it true that the words spoken and the third sentence of the 4 June Email do say that Ms Bendror current role is now redundant and her employment with the Respondent would cease on Sunday 9th June following her last shift at the sales centre. However, that is not all that was said at the meeting and written in the 4 June Email. The words that follow (which are found in the last sentence of the 4 June Email) plainly leave open the possibility that Ms Bendror’s employment may not end, by way of dismissal, on 9 June 2025. That possibility was contingent upon Mr Mannion being successful in finding another employment opportunity for Ms Bendror within the company.
As I have found above, Mr Mannion was able to find another job for Ms Bendror with the Respondent. That was the Associate Agent role, which was offered to Ms Bendror and accepted by Ms Bendor on 6 June 2024, which is before 9 June 2024. On that basis, I am not satisfied that through the words spoken at the meeting on 30 May 2024 and / or the 6 June Email that the Respondent through plain and unambiguous words and / or conduct communicated to Ms Bendror that she was dismissed.
Two, I have found that in the period from 11 June 2024 to 16 June 2024 that Ms Bendror retained and used her work laptop, work issued mobile phone and performed work for the Respondent. I have found that in the pay period from 7 June 2024 to 20 June 2024 that Ms Bendror was paid her usual wages in this period. I consider these facts are fatal to the Respondent’s argument that Ms Bendror was dismissed on 9 June 2024 before commencing employment again with the Respondent on 17 June 2024. In examining all of the circumstances surrounding the purported dismissal,[120] it is evident that the conduct of the Respondent – in accepting the performance of work from Ms Bendror after she had purportedly been dismissed, paying Ms Bendror her usual wages in the period after she had purportedly been dismissed and allowing Ms Bendror to continue to use company property – is completely at odds with a conclusion that Ms Bendror has been dismissed with effect from 9 June 2025. The same conclusion can be reached by reference to the conduct of Ms Bendror in this period – most obviously, in performing work for the Respondent.
For those reasons, I reject the Respondent’s argument that Ms Bendror was dismissed on 9 June 2024. In reaching that conclusion, I have taken into account the fact that Ms Bendror was paid her usual wages in the period from 11 June 2024 to 16 June 2024. In his cross-examination of Ms Bendror, Mr Mannion drew attention[121] to an error in Ms Bendror’s income statement filed by the Respondent with the Australian Taxation Office for the financial year ending 30 June 2024.[122] Mr Mannion did say that Ms Bendror may have been paid the Kings Birthday Public Holiday, which fell on 10 June 2024, in error.[123] Mr Mannion[124] and Mr Pawlowski[125] suggest there was an error with the Ms Bendror’s pay slip dated 20 June 2024, which recorded a balance of 7.0550 hours in annual leave. I do not accept Mr Mannion’s evidence that the Kings Birthday Public Holiday was paid in error. I have my doubts as to whether there was an error with the annual leave balance. However, I do not need to resolve that issue. That is because my conclusion that Ms Bendror was not dismissed on 9 June 2024 does not take into account the fact that a balance of 7.0550 hours in annual leave was recorded in that pay slip. Critically, Mr Mannion did not expressly say that there was an error in Ms Bendror being paid her usual wages in the period from 11 June 2024 to 16 June 2024. The closest that Mr Mannion came to saying something similar was with reference to the annual leave balance where in cross-examination, Mr Mannion said that he asked the accountants to pay out all of Ms Bendror’s entitlements.[126] I have already found that I do not accept that evidence from Mr Mannion. It is on that basis that I am satisfied that the payment to Ms Bendror in the period from 11 June 2024 to 16 June 2024 of her usual wages is a factor that strongly suggests that she was not dismissed on 9 June 2025. I reject any submission that the payment of Ms Bendror’s usual wages in that period was an error.
I am satisfied that Ms Bendror was not dismissed on 9 June 2025. As such, I am satisfied that Ms Bendror’s period of employment commenced on 29 March 2023 and concluded on 14 April 2025. That period of employment satisfies the minimum employment period irrespective of whether the relevant minimum employment period is the period in section 383(a) or (b) of the FW Act. On that basis, I conclude that Ms Bendror is a person protected from unfair dismissal and dismiss the PPFUD Objection.
Third ground of argument
I do not see any utility in engaging with the third ground of argument advanced by Ms Bendror. I have found that Ms Bendror is a person protected from unfair dismissal by accepting both the first ground and second ground advanced by Ms Bendror. It would only become necessary to consider the third ground if I am wrong about both the first ground and the second ground. I do not think consideration is warranted of the third ground where the Respondent is clearly not a small business employer and Ms Bendror was clearly not dismissed on 9 June 2024. On that basis, it is unnecessary to give any further consideration to the third ground.
Conclusion
For the reasons explained above, I find that the Respondent is not a small business employer within the meaning of section 23 of the FW Act. I find that Ms Bendror was not dismissed on 9 June 2024. I find that Ms Bendror’s period of employment satisfies the minimum employment period irrespective of whether the relevant minimum employment period is the period in section 383(a) or (b) of the FW Act. On that basis, I conclude that Ms Bendror is a person protected from unfair dismissal. I dismiss the PPFUD Objection.
The merits of Ms Bendror’s application will be considered. The parties will shortly receive a notice of listing, which lists the matter for a case management conference.
COMMISSIONER
Appearances:
M. Kriewaldt, for the Applicant
L. Mannion, for the Respondent
Hearing details:
Sydney by Video using Microsoft Teams
2025
1 July
[1] Digital Hearing Book (DHB) page 196.
[2] DHB, page 196.
[3] DHB, pages 110, 207. PN216.
[4] DHB, page 209.
[5] Section 12 of the FW Act.
[6] Section 12 of the FW Act.
[7] Section 12 of the FW Act.
[8] Section 9 of the Corporations Act 2001.
[9] Section 12 of the FW Act.
[10] DHB, page 55.
[11] DHB pages 3, 14, 197, 207.
[12] DHB page 180.
[13] DHB pages 14, 19 – 58.
[14] DHB, page 20.
[15] DHB pages 25, 26, 55.
[16] DHB page 54.
[17] DHB page 55.
[18] DHB pages 26, 55.
[19] DHB page 14.
[20] DHB page 207.
[21] DHB pages 14, 207, PN529 – PN545.
[22] DHB page 207.
[23] DHB pages 14 – 15.
[24] DHB page 207.
[25] DHB page 65.
[26] DHB pages 95, 185.
[27] DHB page 15.
[28] DHB page 66.
[29] DHB page 16.
[30] DHB page 14.
[31] DHB page 16.
[32] DHB pages 197, PN525.
[33] DHB page 210.
[34] PN311.
[35] PN311.
[36] DHB page 16.
[37] PN203.
[38] PN361 – PN364.
[39] DHB page 210.
[40] PN309 – PN310.
[41] PN318.
[42] DHB page 209.
[43] DHB page 210.
[44] DHB page 17. 208.
[45] DHB page 17.
[46] PN308.
[47] DHB pages 55, 66.
[48] DHB page 17.
[49] DHB pages 17, 66.
[50] DHB pages 17, 66, PN134 – PN155, PN547 – PN554.
[51] DHB pages 17. 208.
[52] DHB pages 90 – 91, PN450 – PN451.
[53] DHB page 194.
[54] DHB page 92, PN446 – PN451, PN476.
[55] PN475 – PN476.
[56] DHB page 89, PN443 – PN444.
[57] Prasad Dhungel v The Baking Company Australia Pty Ltd[2012] FWA 4717 at [36], Mr Stephen Burridge v Redfrog Recycling Pty Ltd[2021] FWC 6145 at [41], Judith Crane v Yulu-Burri-Ba Aboriginal Corporation for Community Health[2015] FWC 966 at [52].
[58] DHB pages 89 – 92.
[59] DHB page 92, PN443 – PN444, PN453 – PN455.
[60] PN475 – PN476.
[61] DHB page 92, PN455 – PN469.
[62] PN441.
[63] DHB pages 10-13, 92 – 93. PN442.
[64] DHB page 10, PN491 – PN508.
[65] DHB page 207.
[66] PN509 – PN511.
[67] PN509 – PN510.
[68] PN510.
[69] PN513, PN525.
[70] DHB pages 110 – 111.
[71] DHB page 124.
[72] DHB page 111.
[73] PN216.
[74] Section 64A of the Corporations Act 2001.
[75] Clermont Coal Pty Ltd v Brown [2015] FCAFC 136 at [5].
[76] PN221 – PN223.
[77] DHB pages 94 – 191.
[78] DHB pages 89 – 93.
[79] DHB page 115.
[80] DHB page 115.
[81] DHB page 115.
[82] DHB pages 110, 115. PN220.
[83] DHB page 192.
[84] DHB page 127.
[85] DHB page 95.
[86] DHB pages 185 – 190.
[87] PN248 – PN250.
[88] DHB page 186.
[89] PN278 – PN283.
[90] PN232.
[91] DHB page 96.
[92] DHB page 96.
[93] PN164.
[94] PN276.
[95] PN287.
[96] PN233.
[97] PN256.
[98] PN257.
[99] PN258.
[100] PN262.
[101] PN262 – PN263.
[102] DHB pages 127 – 178.
[103] DHB page 130.
[104] DHB page 130.
[105] DHB page 131.
[106] DHB page 94.
[107] DHB page 178.
[108] DHB pages 95 – 96.
[109] DHB page 209.
[110] DHB page 209, PN248 – PN251.
[111] PN256.
[112] PN510.
[113] PN361 – PN362.
[114] PN525.
[115] DHB page 65.
[116] [2016] FWCFB 5500.
[117] At [17].
[118] At [24].
[119] DHB page 65.
[120] Print S5904 (AIRCFB, 12 May 2000).
[121] PN175 – PN186.
[122] DHB page 74.
[123] PN311.
[124] PN318 – PN319.
[125] DHB page 209.
[126] PN318.
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