Oscar Kingsford-Shooter v Chemical Elixir Pty Ltd Summary

[2025] FWC 1005

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Oscar Kingsford-Shooter
v

Chemical Elixir Pty Ltd

(U2025/1410)

COMMISSIONER MCKINNON

SYDNEY, 11 APRIL 2025

Application for an unfair dismissal remedy – applicant has not completed the minimum employment period – application dismissed

Mr Oscar Kingsford-Shooter has applied to the Commission for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). Under section 382 of the Act, a person is protected from unfair dismissal if, at the relevant time:

They have completed at least the minimum employment period; and
They are either covered by a modern award, employed under an enterprise agreement that applies to them or earn an annual income of less than the “high income threshold”.

Section 383 of the Act defines the minimum employment period as 6 months, or in the case of small business employers, one year. A small business employer is one that has less than 15 employees. There is no dispute that Chemical Elixir Pty Ltd was a small business employer at the time of Mr Kingsford-Shooter’s dismissal.

The question is whether Mr Kingsford-Shooter has completed at least the minimum employment period such that he is protected from unfair dismissal.

Mr Kingsford-Shooter was originally employed by Fresh Investment Pty Ltd (Fresh) from 18 April 2024 to 9 December 2024. On 10 December 2024, his employment transferred to Chemical Elixir Pty Ltd (Chemical Elixir) in connection with a transfer of business. He worked as a casual production worker from 10 December 2024 to 17 December 2024 before resigning. He was re_‑employed on 10 January 2025 and dismissed on 5 February 2025 with immediate effect. The break between periods of employment from 17 December 2024 to 10 January 2025 does not appear to count as a period of continuous service. Even if the break did count, the outer limits of his total period of service with Chemical Elixir (including service with Fresh) would be less than 10 months. On either view, Mr Kingsford-Shooter’s period of employment with Chemical Elixir Pty Ltd was less than one year.

It follows that Mr Kingsford-Shooter is not protected from unfair dismissal.

The application is dismissed.

COMMISSIONER

Appearances:

No appearance for the Applicant
M Chokshi for the Respondent

Hearing details:

2025.
Sydney (via MS Teams):
April 9.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Oscar Kingsford-Shooter applied to the Fair Work Commission for an unfair dismissal remedy under section 394 of the Fair Work Act 2009. His employer, Chemical Elixir Pty Ltd, argued that his employment period was less than the statutory minimum period required for protection from unfair dismissal. The Commission was required to determine whether Mr Kingsford-Shooter had completed the requisite minimum employment period to be eligible for protection against unfair dismissal.

The key issue before the Commission was whether Mr Kingsford-Shooter had completed at least the minimum employment period with Chemical Elixir Pty Ltd, which, being a small business employer, is defined as one year under section 383 of the Act. Mr Kingsford-Shooter had worked for Fresh Investment Pty Ltd from 18 April 2024 to 9 December 2024. His employment then transferred to Chemical Elixir Pty Ltd on 10 December 2024, where he worked until 17 December 2024. He resigned, was re-employed on 10 January 2025, and subsequently dismissed on 5 February 2025. The Commission had to determine whether the break in employment and the total duration of his employment with Chemical Elixir met the statutory threshold.

The Commission found that Mr Kingsford-Shooter's employment with Chemical Elixir Pty Ltd did not meet the statutory minimum employment period. Even if the break between 17 December 2024 and 10 January 2025 were counted as continuous service, his total employment period with Chemical Elixir, including the period with Fresh Investment Pty Ltd, would still be less than one year. Therefore, Mr Kingsford-Shooter did not satisfy the statutory requirement for protection from unfair dismissal. Consequently, the application was dismissed.

The Commission ordered that Mr Kingsford-Shooter's application for an unfair dismissal remedy be dismissed. The decision was based on the finding that the applicant had not completed the minimum employment period required to be protected from unfair dismissal.

Oscar Kingsford-Shooter v Chemical Elixir Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established