The Fair Work Act 2009 provides that a person is protected from unfair dismissal if, amongst other things, they have completed a period of employment of at least the minimum employment period. The minimum employment period is one year for a small business employer. An employer is a small business employer if at the time of the relevant dismissal they employ less than 15 employees. The period of employment is the period of continuous service the employee has completed with the employer. A period of service is the period during which the employee is employed by the employer. A period of service as a casual employee only counts if the casual employee was employed on a regular and systematic basis with a reasonable expectation of continuing employment on a regular and systematic basis A period of service includes a period of service with a prior employer if there is a transfer of employment between the first employer and the second employer.
A transfer of employment occurs when either of the following two conditions are satisfied:
1. The first and second employers are associated entities and the employee becomes employed by the second employer within three months of ceasing employment with the first employer. According to s.50AAA of the Corporations Act, two entities are said to be associated entities if:
a) the entities are related bodies corporate; or
b) the principal controls the associate; or
c) the associate controls the principal and the operations, resources or affairs of the principal are material to the associate; or
d) the associate has a qualifying investment in the principal and the associate has significant interest over the principal and the interest is material to the associate; or
e) the principal has a qualifying investment in the associate and the principal has significant interest over the associate and the interest is material to the principal; or
f) a third entity controls both the principal and the associate and the operations, resources or affairs of the principal are material to the third entity.
2. The first and second employer are not associated entities but a transfer of business has occurred between the first (the old) and the second (the new) employer whereby the employee becomes a transferring employee. A transfer of business occurs when the employment of the employee with the old employer has been terminated, the employee becomes employed by the new employer within three months of ceasing employment with the old employer, the work the employee is performing for the new employer is the same or substantially the same as the work they were performing for old employer and there is a connection between the old and the new employer.