Headcount, contractors, and a payroll report that landed at the eleventh hour
A worker tried to argue contractors should count toward her employer's headcount. The Fair Work Commission disagreed.
The Fair Work Commission has thrown out an unfair dismissal application against Buildcraft WA Pty Ltd, ruling on 18 May 2026 that the company is a small business and the worker had not been there long enough to bring her claim.
Shayna Gough worked at Buildcraft from 27 May 2025 to 4 December 2025. She lodged her application four days later, on 8 December 2025. The employer pushed back straight away, arguing Gough had not served the minimum employment period under section 382(a) of the Fair Work Act 2009.
That period depends on company size. Employers with 15 or more workers get six months. Small business employers - fewer than 15 - get 12. Gough's case lived or died on which side of that line Buildcraft fell.
She argued it had 23 workers. To back that up, she filed a staff planner and tender documents showing the larger number in late November and early December 2025. The problem was that several of those people were contractors, engaged through their Australian Business Numbers. Gough said they were not real contractors - they were doing the work of employees and should be counted as such.
A former employee and colleague, Ms St Clair, provided a witness statement on the contractor arrangements. St Clair was not available for examination at the hearing.
Buildcraft, for its part, almost lost the case by default. The Commission had directed the company to file material on 17 April 2026. It did not. The employer produced nothing meaningful on the jurisdictional objection until the hearing itself on 28 April 2026, when it handed over a payroll report for the week of 8 December 2025. That report showed 13 employees - inside the small business threshold.
Commissioner Schneider did not hide the bench's displeasure. The decision notes that "[t]he Respondent's lack of engagement in the process and failure to file material as directed was a significant source of frustration for the Commission and Applicant during the process." Gough, by contrast, had filed on time.
But the payroll record carried the day. The Commissioner accepted Buildcraft had fewer than 15 employees at the time of the dismissal, found it was a small business employer under the Act, and concluded Gough needed 12 months of service to bring an unfair dismissal claim. She had served about six.
"I have no alternative but to dismiss the application," Schneider wrote. The 12-month threshold under section 394 is fixed. The Commission has no discretion to bend it.
For HR teams, the lesson is sharper than the result. The small business carve-out is real, but it is also evidential. Headcount is measured at the time of dismissal, and a contemporaneous payroll report can settle the question on its own. Contractor arrangements can be challenged, and Gough's argument was not unreasonable - it just was not enough on the evidence she had.
Process matters too. Buildcraft won, but only because its late-produced payroll happened to support it. The Commissioner's frustration is on the public record. Employers in jurisdictional fights should not assume a strong technical position will rescue them from ignoring directions. The next case might not.
