Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application dismissed under s.587(1)(c).

• [1] On 10 June 2025 Mr Brock Beresford (Applicant) made an application pursuant to s.394 of the Fair Work Act 2009 alleging that he had been unfairly dismissed from his employment with Mt Arthur Coal Pty Limited (Respondent).

• [2] The Applicant stated in the application that he commenced employment with the Respondent on 3 November 2024 and that his dismissal took effect on 21 May 2025.

• [3] The Respondent raised a jurisdictional objection, contending that the Applicant had not completed the minimum employment period required under s.383 of the Act and therefore not a person protected from unfair dismissal within the meaning of s.382 of the Act.

• [4] The Respondent submitted that the Applicant's employment commenced on 11 December 2024, and provided a letter of offer of employment in support of this contention. The letter expressly stated that the Applicant's employment was to commence on 11 December 2024.

• [5] If the employment commenced on 11 December 2024 and ended on 21 May 2025, the Applicant would have completed 5 months and 11 days of employment. This falls short of the minimum 6-month employment period required under section 383(a) for an employer that is not a small business employer.

• [6] On 27 August 2025, the Commission wrote to the parties in relation to the jurisdictional issue. The Applicant was invited to confirm, by 1 September 2025, whether he accepted the Respondent's stated commencement date of 11 December 2024. If he did not agree, he was invited to provide reasons and any evidence to support his asserted commencement date of 3 November 2024.

• [7] On 2 September 2025, the Applicant's representative informed the Commission that they had been unable to obtain instructions from the Applicant.
• [8] Later on 2 September 2025, the Commission wrote to the parties advising that if no response was received from the Applicant by 5 September 2025, the Commission would proceed on the basis that the Applicant commenced employment on 10 December 2024, and the application would be dismissed accordingly.

• [9] On 5 September 2025, the Applicant's representative again advised that they were unable to obtain instructions from the Applicant.

• [10] In the absence of any evidence to the contrary, I accept the Respondent's evidence that the Applicant's employment commenced on 11 December 2024, as supported by the offer of employment letter.

• [11] Accordingly, I am satisfied that the Applicant was employed for a period of less than 6 months as at the date the dismissal took effect, and therefore had not completed the minimum employment period required under s.383(a) of the Act. It follows that the Applicant does not meet the criteria under section 382 to be a person protected from unfair dismissal.

• [12] Section 587(1) of the Act provides:

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(c) the application has no reasonable prospects of success.

• [13] In the circumstances of this matter, I am satisfied that the application has no reasonable prospects of success and that it is appropriate to dismiss the application under s.587(1)(c) of the Act. An Order to this effect will be separately issued.

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