FWC says rehiring after a break can leave casuals unprotected
A boomerang dishwasher’s unfair dismissal bid has been thrown out after the Fair Work Commission ruled his rehiring did not give him enough service for protection.
On 13 November 2024, Giuseppe Castagna lodged an unfair dismissal application under the Fair Work Act 2009 against his former employer, Rehals Divine Indian Restaurant. He said his employment had ended in October 2024 and sought an unfair dismissal remedy.
In a decision issued in Sydney on 20 January 2026, Deputy President Cross dismissed the application, finding that Mr Castagna had not completed the minimum employment period required to bring an unfair dismissal claim against the restaurant, which was found to be a small business employer.
Mr Castagna first started with the restaurant on 16 February 2022 as a casual dishwasher. In or around August 2023, he informed the owner, Mr Kumar, and Mr Kumar’s wife, a shareholder, by telephone and SMS that he was leaving his job. In evidence, he confirmed that he resigned on or about 29 August 2023.
On or around 10 November 2023, he called Mr Kumar and said words to the effect: “Mate, I am back in town and looking for work. Can you please hire me as casual again?” Mr Kumar replied: “I will let you know. Should be ok. Will let you know when to start.” After further calls and messages between 10 and 20 November 2023, Mr Kumar asked him to come to work that night. The decision records his rejoining date as a casual employee as 20 November 2023.
In or around October 2024, the business did not require his casual services. On 22 October 2024, he received a text from employee Kanchan Kumar stating that his back pay had been paid from 1 July to “till now,” that there was only a Monday shift for him that week at 6 o’clock, and that the restaurant had hired a full-time dishwasher.
Two days later, on 24 October 2024, he received a text from Rishi Kumar. It stated that, as per the restaurant’s records, back pay had been paid the previous Tuesday, covering the difference from $22.60 to $24.20 per hour from July 2024 to that date, and that his payslips would be emailed. The message also said he was working on casual shifts or “on call,” with duties of dishwashing and emptying the bin at the end of the shift, and that there was no agreement on certain hours. It ended: “Just want to let you know ,we have now full-time Dishwasher. So we don’t need any casual staff for dishwashing.”
The employer argued that the dismissal took effect on 22 October 2024, which would have made the application one day late. In an earlier out-of-time decision dated 24 February 2025, the Commission rejected that view, finding the 22 October text did not amount to a clear and unequivocal dismissal and in fact advised him of a further shift, while the 24 October text communicated that he would not receive any further casual dishwashing work.
The restaurant also raised a jurisdictional objection that he had not completed the minimum employment period. The Commission accepted the restaurant’s payroll employee summary showing eight relevant employees, and found it was a small business employer. It then held that the employment relationship ended when he left from late August to 20 November 2023, and that the Fair Work Act does not permit an employee whose employment has ended and who is later re-employed by the same employer to have earlier service combined with later service as part of “continuous service.” A gap between periods of employment with the same employer breaks continuous service.
The Commission found that the employment period from 20 November 2023 to 24 October 2024 was approximately one month less than the minimum 12 months required for a small business employer. It concluded that he had not completed the minimum employment period and was therefore not a person protected from unfair dismissal at the time his employment ended. The application was dismissed.
