1 Fair Work Act 2009 s.394—Unfair dismissal Carly Welburn v Peninsula Health (U2025/18841) COMMISSIONER PERICA MELBOURNE, 27 MAY 2026 Application for an unfair dismissal remedy [1] On 26 November 2025, Ms. Carly Welburn made an application under s394 of the Fair Work Act 2009 for a remedy, alleging she had been unfairly dismissed from her employment with Peninsula Health (PH). [2] At a case management hearing on 11 March 2026, I informed the parties there may be a jurisdictional issue because Ms. Welburn may not be a person protected from unfair dismissal under s390. There was a question whether she met the Minimum Employment Period (MEP) prescribed by s382. [3] On 1 April 2026, the jurisdictional objection was heard by Determinative Conference using Microsoft Teams. Ms. Welburn attended and represented herself. Mr. Daniel Fawcett of counsel appeared on my leave for PH. He was instructed by Mr. Marcus Topp of Kingston Reid. Two employees of PH also attended: Ms. Trudy Ararat, Executive Director of People, Culture and Governance, and; Ms Sarah Curan, Junior Legal Counsel. Ms. Caroline Schlieper, Senior Liability Claims Specialist of the Victorian Managed Insurance Authority also attended. [4] For the following reasons, I am not satisfied Ms. Welburn was a person who was protected from unfair dismissal within the meaning of s 390(1)(a) of the Act. Her unfair dismissal application is therefore dismissed. When can the Commission order a remedy for unfair dismissal? [5] Section 390(1) of the Act provides that the Commission may order a remedy if: (a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and (b) the person has been unfairly dismissed (see Division 3). [6] For the purpose of this proceeding, I must be satisfied Ms. Welburn is a person who was protected from unfair dismissal at the time she was dismissed. [2026] FWC 1921 DECISION [2026] FWC 1921 2 When is a person protected from unfair dismissal? [7] Section 382(a) provides person is protected from unfair dismissal, if “the person is an employee who has completed a period of employment with …her employer of at least the minimum employment period from the time they are given notice of termination, or the immediately before the dismissal, whichever is the earlier. Meaning of minimum employment period and period of employment [8] Section 383 provides a definition of minimum employment period (MEP): 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. [9] Period of employment is defined in s 384 as follows: (1) 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. (2) However: (a) a period of service as a casual employee does not count towards the employee’s period of employment unless: (i) the employment as a casual employee was as a regular casual employee; and (ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and (b) if: (i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and (ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and (iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised. the period of service with the old employer does not count towards the employee’s period of employment with the new employer. Meaning of service and continuous service [10] Section 12, the dictionary in the Act, defines “service” by referring to s22 and “continuous service” as “having a meaning affected by s22”. Section 22 relevant says: [2026] FWC 1921 3 (1) A period of service by a national system employee with … her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period ) that does not count as service because of subsection (2). (2) The following periods do not count as service: (a) any period of unauthorised absence; (b) any period of unpaid leave or unpaid authorised absence, other than: (i) a period of absence under Division 8 of Part 2 - 2 (which deals with community service leave); or (ii) a period of stand down under Part 3 - 5, under an enterprise agreement that applies to the employee, or under the employee‘s contract of employment; or (iii) a period of leave or absence of a kind prescribed by the regulations; (c) any other period of a kind prescribed by the regulations. (3) An excluded period does not break a national system employee‘s continuous service with his or her national system employer, but does not count towards the length of the employee‘s continuous service. (3A) Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions which subsection (4) applies). If they do so, subsection (3) applies accordingly. … EMPLOYMENT HISTORY [11] Since 2021, Ms Welburn’s employment history with PH has involved a myriad of different roles and modes of employment, and two resignations. During her employment she was covered by the Health and Allied Services, Managers and Administrative Workers (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2021-2025 (the Agreement). First employment periods from 22 February 2021 until 25 March 2025 [12] Ms Welburn was employed in a variety of roles with PH between 22 February 2021 until 25 March 2025.1 The roles and significant dates are: • 22 February 2021: she commenced employment as a casual People and Business Partner with PH. • 1 September 2021: She commenced work as a part time HR Business Partner. • 29 March 2022: Her role was varied from part time to casual by reason of a variation request dated 17 March 2022. • 6 April 2023: the effective date of Ms Wellburn’s resignation from her casual position with PH. • 5 June 2023: Ms Wellburn was re-employed by PH as a Casual HR Business Partner. [2026] FWC 1921 4 • 25 March 2025: Ms Wellburn was offered and accepted a permanent ongoing position as Industrial Relations Manager. Resignation from the position as a permanent Industrial Relations Manager [13] By an e-mail dated Monday 14 July 2025, Ms Welburn resigned from her permanent position as Industrial Relations Manager. The e-mail contained the following text: As discussed, I am resigning from my position as Industrial Relations Manager at [PH] The required notice period is 4 weeks, but I can be flexible with this to meet the needs of the organisation. I am also happy to continue working for PH in a casual capacity as needed [14] On 23 July 2025, PH announced Ms Welburn’s resignation to the Department Heads at PH by an e-mail which included the following text: It is with sadness that I announce Carly Welburn’s resignation from her position as Industrial Relations Manager. Carly has made the decision to take her career in another direction she is passionate about bein g education. Carly will commence her tertiary studies in education shortly. Carly commenced with Peninsula Health in February 2021 and has been a tremendous team m ember in the Business Partnering and more recently in the Industrial Relations teams. Carly is very well respected across the business for her industrial knowledge, collaborative approach, and drive. Please join in me wishing Carly all the best for her future. Recruitment has commenced for Carly’s replacement. [15] The four week notice period concluded on Tuesday, 10 August 2025. [16] On 3 September 2025, PH paid out Ms Welburn’s accrued but untaken entitlements. The last period of casual employment until 10 November 2025 [17] On 21 August 2025, Ms Welburn was issued a contract as a casual People and Culture Business Partner2 The second paragraph backdated the contract so that she held the position “…effective from 11 August” Under that contract she worked the following hours. • 26 August 2025 – 4 hours • 29 August 2025 – 5 hours • 1 September 2025 – 4 hours • 3 September 2025 – 3.5 hours • 8 September 2025 – 4 hours • 15 September 2025 – 3.5 hours • 17 September 2025 – 3.5 hours Termination on 10 November 2025 [2026] FWC 1921 5 [18] On 10 November 2025, PH sent an e-mail to Ms. Welburn which included the following text: Further to our telephone conversation on 5 November 2025, I am writing to confirm that Peninsula Health is ceasing engagement of your services as a People and Culture Business Partner (Casual) effective on 10 November 2025 in accordance with the terms and conditions of your contract of employment dated 21 August 2025. Can you please make arrangements to return all Peninsula Health equipment by 14 November 2025. [19] Her last period of casual employment (leaving aside the question of continuity of employment between her role as Industrial Relations Manager to her casual People and Culture Business Manager) was two months and twenty days. THE CONTESTED PERIOD [20] The pivotal question which will determine whether Ms. Welburn has worked the MEP is: Did her period of employment continue after the expiration of the notice period on 10 August 2025 through to the date she entered into the backdated contract of employment as a casual People and Culture Business Partner on 21 August 2025 (from here on referred to as “the contested period”) ARGUMENTS OF MS WELBURN FOR CONTINUITY OF EMPLOYMENT [21] Ms Welburn argues she had continuity of employment that bridges the contested period for the purposes of the calculation of the MEP. The submissions she makes to support this argument include:3 • Payroll “did not terminate and reinstate my employment in the system.” • Her certificates of service indicate there was continuity of employment. Her certificate of service for the period 2023 to 2025 states “this is to certify that Welburn, Carly Jane has been employed by Peninsula Health from 5/06/2023 to 10/11/20254“ • The first paragraph of the letter dated 21 August 2025 which offered Ms Welburn the casual position of People and Culture Business Partner commences with the words “We are pleased to have your continuous employment with us at Peninsula Health!” The second paragraph backdated the contract so that she held the position “…effective from 11 August5“ • PH made “representations about the ongoing nature” of her employment. o In the conference I asked Ms Welburn what those representations were and she said “well, the contract - the commencement date for the casual position didn’t change. They had to change the date that the contract was issued with that commencement date based on the administrative delay.6“ o Ms Harvey and Ms Welburn had arranged that she “would work from the 10th. I logged on the 10th, ready to work. I still had access to my computer. I had everything ready to go. I was sitting at my desk [at home].7 She was “working from home that day, and I logged on, ready to work, and I couldn’t because [2026] FWC 1921 6 I double-checked with Ms Harvey and the administrative side of it hadn’t been signed off.8“ • She “transitioned from permanent to casual employment as part of an ongoing arrangement. I was advised to submit a resignation to formalise the transition”. • The enterprise agreement recognised continuity of employment despite short breaks, including breaks up to five weeks in addition to paid out leave (and longer in the case of casual employment where there is a reasonable expectation of re- engagement).9 • She “retained her work equipment and intended shifts during the relevant period.” Ms Welburn was “not asked to return equipment at the conclusion of my Industrial Relations Role. In contrast when her employment was terminated on 10 November 2025, I was required to return my equipment immediately.” • Her “access to systems, e-mails and confidential HR documents continued during the transition period. In contrast, when my employment was terminated on 10 November 2025, my access was removed immediately”. • “It is usual practice within my team to formally farewell employees who are leaving. This did not occur, as it was understood that I would continue working.” The evidence of Harvey [22] Ms Welburn relied on a witness statement of Ms Emma Harvey.10 Ms Harvey was employed as a Manager of Business Partnering and Change at PH from July 2023 to November 2025. Ms Harvey had been involved in discussions with Ms Welburn about her transition to her last casual position. Her statement included the following: • Part time and casual employment options were discussed. A casual arrangement was agreed upon in principle to accommodate Ms. Welburn’s personal circumstances, which included selling a house, moving, caring responsibilities, and study commitments. • It was agreed, subject to formal approval processes, Ms. Welburn would return to the work she was performing prior to her appointment to the Industrial Relations position. This included seeking approval for the same job title, classification, and over- award payment. Ms. Harvey emailed Trudy Ararat, Executive Director People Culture and Governance regarding the casual salary, and approval was provided for Ms. Welburn to return to the previous over-award payment. • Ms Welburn’s notice period was treated as flexible and plans were made to transition her immediately into the casual position. • Following the announcement email regarding her resignation, Ms Welburn contacted Ms. Harvey. She was upset it suggested she was leaving Peninsula Health, which was not the case. • Ms. Harvey raised the request to recruit for the casual People Business Partner position When approved, ”this would have resulted in a contract being generated for Ms Welburn’ s casual employment prior to the end of her Industrial Relations role.” • The approval process was significantly delayed despite Ms. Harvey following up with Ms. Mortimer, the Director of People Operations, on multiple occasions. Approval required “a simple step within the system and was not actioned in a timely manner” [2026] FWC 1921 7 • Ms. Welburn had work and shifts allocated immediately following her Industrial Relations role. She was unable to work and was not paid as expected due to the delay in contract approval. Argument based on clause 62.1(b)(ii)(B) of the Agreement. [23] Ms Welburn relies on an argument based on clause 62.1 of the Agreement. She argues this provision effectively bridges the gap and has the legal effect that she has continuity of service between the end of her notice period which ended her role as a permanent Industrial Relations Manager on 10 August 2025 and the commencement of her role as a casual People and Culture Business Partner on 21 August 2025. [24] Clause 61 is headed “Long Service Leave.” The scope clause in clause 61.1(a) explains the lay out of the provision which relevantly states (with emphasis added): • Part 1 (Clause 61.1) explains the scope of this clause and includes terms used across each Part • Part 2 (Clause 61.2) sets out the long service leave entitlement of employees employed as Group A Employee or Group B employee…at the time they take a period of long service leave or their employment ceases • Part 3…. [25] Clause 61.2 is headed “Part 2 Long Service Leave for Group A and Group B Employees”. It sets out the long service leave entitlements of the two species of employees (Group A and B) as follows (with emphasis added): (a) Application of Part 2 This part (clause 61.2) applies to Group A Employees and Group B Employees only. (i) Entitlement Subject to clause 61.2(c) Employees are entitled to: (A) six months’ long service leave with Pay on completion of fifteen years of Continuous Service; and (B) thereafter an additional two months’ long service leave with Pay on completion of each additional five years of Continuous Service. (ii) Subject to clause 61.2(c)(iii) below and 61.2(c)(iv), an entitlement under clause 61.2(a)(i) may be taken in advance on a pro rata basis if the Employee has accrued Continuous Service of at least: (A) 10 years as at the date on which this Agreement is [2026] FWC 1921 8 approved by the Fair Work Commission; or (B) from 1 July 2021, 9 years; or (C) from 1 July 2022, 8 years; or (D) from 1 July 2023, 7 years. [26] Clause 61.2(b), w is entitled “Calculating continuous service” and reads (with emphasis added): (i) Definitions: (A) Continuous Service means continuous Service with the same Employer plus any prior Service of six months or more with one or more Institutions or Statutory Bodies. (B) means, for the purpose of clause 61.2(b)(ii), a period or periods of casual Service that are taken to be continuous, because one of the following applies: i. the period starting at the end of a particular instance of employment and ending at the start of another particular instance of employment did not exceed either the allowable period of absence, or 12 weeks (whichever is greater); or ii. the Employee had been employed by an Employer on a regular and systematic basis, and the Employee had a reasonable expectation of being re-engaged by the same Employer iii. the gap between engagements was due to the terms of engagement of the casual Employee; or iv. the gap between engagements was caused by seasonal factors; or v. the Employee and Employer agreed, before the start of an absence, to treat the employment as continuous despite the absence. (ii) Periods that count towards Continuous Service Service or prior Service as a Group A Employee or Group B Employee during the following periods will be deemed to be continuous and will count as Continuous Service for the purpose of subclause (61.2(a)(i)): (A) an absence from work on any form of paid leave (e.g. annual leave, personal leave, long service leave and paid parental leave); (B) any interruption or ending of employment by the Employer if made with the intention of avoiding obligations in respect of long service leave or annual leave (C) any absence on account of illness or injury arising out of or in the course of the employment for a period during which an Employee is receiving accident pay (see clause 33); (D) any absence from employment on defence service in accordance with section 8 of the Defence Reserve Service (Protection) Act 2001 (Cth); (E) a period of absence on community service leave under the Act; [2026] FWC 1921 9 (F) In the case of unpaid absences not otherwise referenced in this subclause, subject to clause 61.2(g)…. PH ARGUMENTS AGAINST CONTINUITY [27] PH argue the contested period is an insurmountable obstacle to Ms Welburn reaching the MEP.11 The Industrial Relations Manager employment and the last Casual People and Culture Business Partner employment are separate and discontinuous. Ms Welburn’s last casual employment is the relevant period for the calculation of the MEP. The last period of casual employment was for a period of two months and twenty days - short of the six-month MEP. [28] I will not rehearse every argument made by PH, but they include: • Subject to the statutory exceptions in s 22of the FW Act, “continuous service” for the purposesof ss 384 and 22 of the FW Act requires the employment relationship to have been unbroken12 • “Continuous service” for the purpose of s 384 and “service” within the meaning of s 22 means service as an employee “during which the employee is employed by the employer”. To have been “employed by the employer” requires an employment relationship to have existed in the relevant period, irrespective of any contractual relationship between the parties. • There was no employment relationship during the gap. Ms. Welburn’s resignation [from her position as a permanent Industrial Relations Manager] ended and broke her continuous service, effective 10 August 2025. During this period Ms. Welburn was not asked to work, nor was she expected to be available for work, and there was no contract in place to establish an employment relationship during the relevant period. Ms. Welburn did not perform any work until after the Contract was affected, with her first casual shift being on 26 August 2025. This supports the PH’s position that there was no employment relationship between Ms. Welburn and PH during this period. • Had PH intended for Ms. Welburn’s employment to simply be varied from permanent to casual, it need only have completed a variation of employment in its system, as it did in March 2022, when Ms. Welburn transitioned from part time employment to casual employment. That did not occur here. Rather, Ms. Welburn’s resignation took effect, and she later was offered, and accepted a casual position. • While Ms. Welburn had flagged the possibility of performing some casual work for PH following her resignation becoming effective, there is no evidence to support a view that there was a firm commitment to offer Ms. Welburn such work to give rise to the continuation of any employment relationship. Nor is there any evidence there was any mutual agreement between Ms. Welburn and PH for Ms. Welburn’s resignation to be withdrawn prior to it taking effect which would have the effect that the employment relationship would be ongoing despite entering into a new casual contract. Rather, Ms. Welburn’s employment ended on 10 August 2025 and a new employment period as a casual People and Culture Business Partner commenced on 21 August 2025. • Ms. Welburn’s voluntary resignation broke her service so that the subsequent employment as a casual People and Culture Business Partner cannot render her service continuous from the commencement of the previous employment period. Ms. Welburn’s voluntary resignation broke her service. The subsequent employment of Ms. Welburn cannot reasonably render her service continuous from the commencement of the previous employment period. [2026] FWC 1921 10 CONSIDERATION [29] The statutory architecture relevant to the question whether there was continuity between the employment of Ms Welburn as an Industrial Relation Manager and her last employment as a casual People and Culture Business Partner is as follows: • Section 382 prescribes that a person will only be protected from unfair dismissal if she has completed a period of employment of at least the MEP (in this case 6 months). • Section 384 defines period of employment as “the period of continuous service the employee has completed with the employer.” • The dictionary in s12 provides that “continuous service” has a meaning “affected by s22” and the entry for the word “service” simply says “refer to s22”. • Section 22 provides that service is a “period of service by an employee with her employer is a period during which the employee is employed by the employer” It goes on to provide certain periods do not count as service (such as periods of unauthorised absence or unpaid leave). [30] The text of these provisions place emphasis on periods of service during which the employee is employed by an employer. An assessment of the 6-month threshold requires consideration of a period of continuous service during which the employee is employed by her employer. Tosho Kostov v Kinetic Resources Pty Ltd [2025] FWC 302 [31] A similar fact decision of Deputy President Anderson (“Kostov”)13 is helpful on the question of what constitutes “continuous service during which the employee is employed”. [32] Mr Kostov commenced employment with his employer in Queensland on 25 July 2022. On 2 August 2024, Mr Kostov resigned. On 22 August 2024, twenty days later, he commenced work for the same employer in South Australia. Mr. Kostov argued the gap did not break service because it was either a transfer employment under s22 of the Act or a period of absence included as “service” under the Act. [33] In his decision the Deputy President gave the following analysis of the relevant provisions (with emphasis added): [59] “Service” as an employee for the purposes of s 22 does not require a person to be working on each of the days in the relevant period. Rather, the issue is whether an unbroken employment relationship existed in that period. The reason for this is self-evident. An employee may be rostered off work during a relevant period, not required to work on a day or days during a relevant period, or be taking paid or unpaid leave during a relevant period, yet be in continuous service as an employee. It is a separate issue, addressed by s 22(2), whether a particular day or days in that period are excluded from being counted towards the length of continuous service. [60] … the phrase “continuous service” (used in s 384) is not defined in the FW Act. However, its ordinary meaning is a period of unbroken service by an employee with an employer. Subject to the statutory exceptions in s 22, “continuous service” for the purposes of ss 384 and 22 of [2026] FWC 1921 11 the FW Act requires the employment relationship to have been unbroken. However, as provided by s 384(2)(a), for unfair dismissal purposes regularly and systematically rostered casual employees remain in service notwithstanding that each engagement may be by separate casual contracts provided a reasonable expectation of continuing employment on that basis exists. Gaps in time between such contracts do not necessarily break service because it is the employment relationship and not the contract that is assessed for continuity.14 [61] For these reasons, the phrases “period of employment” and “continuous service” in s 384 of the FW Act and the phrase “continuous service” in s 22 are best read as relating to a period of an unbroken employment relationship and not necessarily an unbroken employment contract (subject to the further statutory provisions in s 22 which deem certain service to be continuous despite a break in the employment relationship). [34] I agree with this analysis. The focus of the relevant provisions is on rendering “service” to the employer. The phrases “period of employment” and “continuous service” mean a period where the employment relationship is unbroken rather than the employment contract. The Deputy President went on to interpret the relevant provisions through the frame of the particular facts in Kostov (with emphasis added): [81] …There is nothing in the language of the FW Act which directly or indirectly can be interpreted to provide that an employee who resigns but is subsequently re-employed by the same employer, after applying for a vacancy in an open process of recruitment, will have their service deemed continuous upon re-employment. [35] The Deputy President went on to conclude: [89] Because Mr Kostov resigned from earlier employment with Kinetic on 2 August 2024, a gap period of twenty days existed before he was separately re-employed. The period of employment Mr Kostov served prior to dismissal was from 22 August 2024 to 4 October 2024. As this period was less than six months, Mr Kostov was not, at the time of dismissal, a person protected from unfair dismissal. He had not served the minimum employment period of continuous service required by the FW Act. [36] The relevant question then is whether Ms. Welburn’s employment relationship with PH was broken during the contested period. During the conference I asked her two questions relevant to this issue: THE COMMISSIONER: Did you receive any wages between the 10th and the 21st? MS WELBURN: No, I didn’t. THE COMMISSIONER: Did you render any work to Peninsula in that period? MS WELBURN: No.15 Applying Kostov to the facts here [37] I adopt the analysis of Deputy President Anderson. A determination of continuous service is not based on whether the contract of employment continues but the employment relationship. If the requirement is continuity of the employment relationship rather than the contract, the back dating of her casual contract on 21 August could not remedy the break in her [2026] FWC 1921 12 employment relationship that occurred at the expiration of the notice she gave following her resignation effective on 10 August 2025 and the formation of the new contract on 21 August 2025. The argument based on clause 61.2(b)(ii)(B) of the Agreement [38] The interpretation of an enterprise agreement requires an examination of the plain words of the sub section in the context of the agreement. The context of the text in Clause 61.2(b)(ii)(B) within the Agreement is (with emphasis added): • Clause 61.2(b)(ii)(B) is contained in clause 61. Clause 61.1(a) expressly sets out the scope of clause 61.2 as setting out “the long service leave entitlements of Group A and Group B employees”. • Clause 61.2(a) set outs the actual entitlement to long service leave: That is; six months long service leave after fifteen years Continuous Service16 under 61.2(i)(A) and two months additional long service leave on completion of each additional five years of Continuous Service. • “Continuous Service” is defined in Clause 61.2(b)(i)(A). “Continuous Casual Employment” is defined in Clause 61.2(b) as including a circumstance where “the period starting at the end of a particular instance of employment and the start of another particular instance of employment did not exceed….12 weeks”. • Clause 61.2(b)(ii)(B) prescribes periods that are deemed to be Continuous Service. This includes “any interruption or ending of employment by the Employer if made with the intention of avoiding obligations in respect to long service leave and paid parental leave”. [39] The text of the continuity of employment clauses in 61.2(b)(i) and 61.2(b)(ii) are plainly for the purposes of Long Service Leave. The continuity of employment sub clauses are within a clause that unequivocally deals with Long Service Leave entitlements. It defies the plain English of clause 62.1 to construe these sub clauses as extending to give continuity of employment for all purposes. This argument must fail. The contested period and the conduct of PH [40] On the issue of whether the delay between the end of Industrial Relationship Manager employment and the commencement of the casual People and Culture Business Partner employment was intended by PH to defeat continuity of employment, Ms Welburn’s own evidence is the gap between the two periods of employment was caused by delays in the administrative processing of her last casual contract. There is nothing to suggest the delay was intended to defeat her continuity of employment. [41] Although it falls short of demonstrating an intention to deprive Ms. Welburn of continuity of employment, the conduct of PH is not beyond criticism. I accept the contested period was brought about by an administrative delay in processing of Ms Welburn’s new contract. It is worth noting however, PH had done everything to assure Ms Welburn continuity of employment would be conferred: [2026] FWC 1921 13 • Her letter of appointment to the casual position stated: “We are pleased to have your continuous employment with us!” • Her contract was backdated to 11 August. • PH had certified that she had continuity in her certificate of service. • Ms Welburn’s discussions with Ms Harvey led her to believe continuity would be conferred. [42] To be clear, none of these assurances affects my findings on the meaning of continuous service and continuity of the employment relationship for the calculation of the MEP consistent with the decision in Kostov. CONCLUSION AND ORDER [43] If I was deciding this matter purely on equity and good conscience the outcome may have been different, but the facts, and the relevant terms of the Act, rebel as far as Ms. Welburn’s continuity of employment is concerned. [44] It is clear there was discontinuity between her employment relationship with PH as a permanent Industrial Relations Manager which ended on 10 August 2025 and her employment relationship as a casual People and Culture Business Manager which commenced on 21 August 2025. [45] The Act requires her employment relationship to be unbroken for there to have been continuous service. She performed no work, was not paid, and was not subject to a contract of employment during the contested period. The subsequent back dating of her contract does not give continuity for the purposes of s384 because, relying on the analysis of Anderson DP in Kostov, what is required is continuity of the employment relationship rather than continuity as a matter of contract. [46] The break in her employment relationship separated her previous service, which ended with her resignation from the Industrial Relations Manager position, from her subsequent service as casual People and Culture Business Manager. It follows the relevant period for assessing the MEP is her last employment as a casual People and Culture Business Partner. That period was from 21 August 2025 until 10 November 2025, a period of only two months and twenty days. This is short of the 6 months employment required of the MEP in s382 and 383. [47] I therefore find Ms Welburn was not a person protected from unfair dismissal under s390(1) and order that her unfair dismissal application is dismissed. [2026] FWC 1921 14 COMMISSIONER Appearances: Ms Welburn, the Applicant, for herself Mr Fawcett of Counsel on behalf of the Respondent Hearing details: 1 April 2026 Microsoft Teams Printed by authority of the Commonwealth Government Printer <PR810395> 1 Digital Commission Book (DCB) at 22 and 23: This summary is taken from the Respondent’s Outline of Submissions 2 The opaque titles “HR Business Partner” or “People and Culture Business Partner” was the unfortunate creation of Professor David Ulrich in his book Human Resource Champions (1996, Harvard Business School Press, Boston). Its cryptic nature has not impeded its prolific use. 3 Her outline of submissions which contain these arguments are at pp1 to 4 of the Digital Commission Book (“DCB”). 4 DCB at 6. 5 DCB 75 to 80 is a copy of the letter of appointment. 6 PN 60. 7 PN64. 8 PN66. 9 I address the argument based on the Agreement below. 10 DCB 18-19. 11 DCB 22 to 27 contains a copy of PH’s outline of submissions. 12 The respondent relies on a decision of Deputy President Anderson in Kostov. v Specialised Resources Pty Ltd [2025] FWC 302 at [60] for this proposition. 13 Tosho Kostov v Kinetic Resources Pty Ltd [2025] FWC 302. 14 The situation of Ms Welburn is not a gap between casual engagements but the ending of a permanent engagement and the commencement of a casual engagement. 15 PN 49 to 52. 16 The capitalisation of the first letter of the words “Continuous” and “Service” occurs in the Agreement.