Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - minimum employment period - dismissal under s.587(1)(c) at the Commission's initiative - application has no reasonable prospects of success.

• [1] On 30 July 2025, Mr Daniel Fragale made an unfair dismissal application under s.394 of the Fair Work Act 2009 (Cth).

• [2] For the following reasons I am satisfied that Mr Fragale's application has no reasonable prospects of success and should be dismissed.

• [3] Mr Fragale stated in his application that he commenced employment with Australian Handrails Pty Ltd on 3 March 2025 and that his dismissal took effect on 25 July 2025.

• [4] Sections 382 and 383 of the Act provide that a person is only eligible to make an unfair dismissal application if they have completed a minimum period of employment before their dismissal. Section 383 defines the minimum employment period to be either 6 months or 12 months, depending on whether the respondent was a small business employer at the time of the dismissal. On the information provided by Mr Fragale, his period of employment was less than 6 months.

• [5] Commission staff attempted to contact Mr Fragale on 4 August 2025 by telephone. Mr Fragale confirmed that the dates of his employment provided in his application were correct and requested an email be sent to him for his review before making a decision about his application.

• [6] That same day, Commission staff emailed Mr Fragale informing him that he had not served the applicable minimum employment period based on the information that he had provided. The email directed Mr Fragale to file evidence to show that he had served the minimum employment period. That correspondence also warned Mr Fragale that if he did not contact the Commission within 14 days, his application may be dismissed without further notice.

• [7] Commission staff attempted to contact Mr Fragale on 4 August 2025 by SMS in relation to the minimum employment period.

• [8] On 28 August 2025, a final attempt to contact Mr Fragale was made by email, which required a response by 3 September 2025.

• [9] Mr Fragale has not responded to the Commission's multiple attempts to contact him in relation to his Form F2 application.

Section 587 - General Principles

• [10] Section 587 allows the Commission to dismiss an application on the Commission's own initiative in the early stages of the proceedings. Protracted proceedings can be avoided when there is no reasonable prospect of an outcome other than the dismissal of the application.

• [11] The power under s.587 should be used with caution, particularly if the matter involves complex questions of fact or law.[1] An application should not be dismissed under s.587 unless it is very clear that there are no reasonable prospects of success and the power under s.587 is not available if there are disputed facts that could affect the outcome of the proceedings.

• [12] Importantly, applicants must be given a fair opportunity to show that their application does in fact have some reasonable prospects of success.

Does Mr Fragale's application have any reasonable prospects of success?

• [13] The Commission cannot consider the fairness of Mr Fragale's dismissal until it is clear that he is eligible to make an unfair dismissal claim.

• [14] The information provided by Mr Fragale indicates that he is not eligible to make an unfair dismissal application because he was employed for less than six months.

• [15] I am satisfied that Mr Fragale's claim has no reasonable prospect of success and that it is appropriate to dismiss his application. I make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Fragale on 30 July 2025 is dismissed.

[1] See generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [11]- [16].

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