Fair Work Act 2009

s.394 - Unfair dismissal

Applicant prima facie does not meet the minimum employment period - clarification sought - no response received - Applicant warned of potential dismissal if no response to further correspondence - no response received - application dismissed pursuant to s.587 of the Act.

[1] On 23 February 2026 Mr Charles Albores (the Applicant) applied under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy for alleged unfair dismissal. The matter was allocated to my Chambers on 24 March 2026.

[2] Having perused the application, it appeared to me that the Applicant did not meet the minimum employment period required to lodge a claim under s.394. As such, I caused my Chambers to email him as follows on 24 March 2026:

The above matter has been allocated to Deputy President O'Keeffe. The Deputy President notes that your application form states that you commenced employment on 24 November 2025 and were dismissed on 23 February 2026. As such, your total period of employment appears to be about three months.

To pursue an unfair dismissal claim, an employee needs to have a minimum period of employment of six months with their former employer. Given this, it would appear that your application cannot succeed. As such, you are invited to consider withdrawing your claim, which you can do by providing a reply email confirming you are withdrawing the claim. Alternatively, if you believe that you do meet the requirement of six months of employment, you should advise in writing why you say this is the case.

Please provide your response to Chambers in writing by no later than 4.00pm (AWST) Friday 27th March 2026.

[3] No response was received from the Applicant. Given this, I caused my Chambers to email him again on 30 March 2026 as follows:

As there has been no response to our previous correspondence, Deputy President O'Keeffe assumes that you have decided not to pursue your application.

On this basis, he intends to dismiss your application. If this is not your intention you must provide Chambers with your argument as to why you say you have at least six months' service with Aegis Age Care by no later than 4.00pm (AWST) on Wednesday 1st April 2026.

If no response is received your application will be dismissed.

[4] As at 3:00pm (AWST) on 2 April 2026 no response had been received.

[5] Previous decisions of the FWC have found that the items in s587(1)(a)-(c) do not limit the powers of the FWC to dismiss applications (Samuel v Collins Transport Group Pty Ltd [2019] FWC 5521). In this instance, the Applicant has failed to respond to a request to clarify his eligibility to pursue an unfair dismissal claim. He has subsequently failed to respond to a further request which raised with him the possibility of dismissal of his application if he did not respond.

[6] As such, I have formed the view that the Applicant is not properly pursuing his application. In these circumstances, I am persuaded to exercise my powers under s587 to dismiss the application. An order to that effect will issue.

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