Stuart Wills v Top Group (WA) Pty Ltd Summary

[2025] FWC 2137

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 394—Unfair dismissal

Stuart Wills
v

Top Group (WA) Pty Ltd

(U2025/6100)

COMMISSIONER LIM

PERTH, 22 JULY 2025

Application for an unfair dismissal remedy – whether applicant is a person protected from unfair dismissal – whether respondent is a small business – minimum employment period not met – application dismissed.

Mr Stuart Wills was employed by Top Group (WA) Pty Ltd from Saturday 1 June 2024 to Monday 28 April 2025, when he was dismissed due to poor performance. Mr Wills has made an unfair dismissal application to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth).

Top Group objects to Mr Wills’ unfair dismissal application on the grounds that:

(a)Top Group employed less than 15 people at the time of Mr Wills’ dismissal and is therefore a small business employer as per s 23 of the Act; and
(b)Mr Wills’ has not served the 12-month minimum employment period for small business employers and is therefore not a person protected from unfair dismissal under s 382 of the Act.

I listed the matter for a case management conference on Monday 30 June 2025. Mr Wills did not attend the case management conference. I subsequently issued directions for the filing of material. Top Group complied with the directions; Mr Wills did not. To date, Mr Wills has not made any contact with my Chambers, despite being put on notice that I would be determining the matter based on the material before me.

Based on the uncontested evidence from Top Group, I found it appropriate to determine this matter on the papers.

Top Group submitted evidence of a payroll employee summary for the period of Monday 21 April 2025 to Monday 28 April 2025 that shows 18 employees, but with four employees leaving their employment on Thursday 3 April 2025, Tuesday 8 April 2025, Wednesday 9 April 2025 and Thursday 10 April 2025. This leaves 14 employees at the date of Mr Wills’ dismissal, including Mr Wills. I accept this uncontested evidence. This means Top Group was a small business at the time of Mr Wills’ dismissal.

As per Mr Wills’ own Form F2, he worked for Top Group for approximately 10 months. He has therefore not served the relevant minimum employment period of 12 months and is not protected from unfair dismissal.

Order

I order that Mr Wills’ application be dismissed.

COMMISSIONER

Determined on the papers.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Stuart Wills has lodged an unfair dismissal claim against his former employer, Top Group (WA) Pty Ltd, with the Fair Work Commission. Mr Wills, who was employed by Top Group from 1 June 2024 until his dismissal on 28 April 2025, is seeking a remedy for what he contends is an unfair dismissal. Top Group has contested the application, arguing that it is a small business and that Mr Wills has not fulfilled the requisite 12-month employment period to be eligible for protection against unfair dismissal under the Fair Work Act 2009. The central legal issues in this case revolve around whether Top Group qualifies as a small business and whether Mr Wills' employment duration with the company satisfies the criteria to be considered for unfair dismissal protection.

The Fair Work Commission, under Commissioner Lim, examined the evidence presented by Top Group, which included a payroll summary indicating that the company employed 14 individuals at the time of Mr Wills' dismissal. The evidence also showed that Mr Wills had been employed for approximately 10 months, falling short of the 12-month minimum employment period required for protection under the Act. Given that Mr Wills did not attend the case management conference and failed to comply with the Commission's directions, the matter was decided based on the evidence submitted by Top Group. Consequently, the Commission found that Top Group was a small business and that Mr Wills had not met the minimum employment period to be protected from unfair dismissal.

The Commission dismissed Mr Wills' application on the basis that Top Group was a small business and Mr Wills had not satisfied the employment period requirement to be eligible for unfair dismissal protection. The Commission's decision was made on the uncontested evidence provided by Top Group, as Mr Wills did not participate in the proceedings as required. The outcome of the case confirms that Mr Wills' dismissal is not subject to the provisions concerning unfair dismissal, and his application was thus dismissed.

Stuart Wills v Top Group (WA) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established