s.394 - Application for unfair dismissal remedy

Unfair dismissal application - minimum employment period not met - application dismissed

• [1] Edgar Dalisay has made an unfair dismissal application under s 394 of the Fair Work Act 2009 (Act) against his former employer, The Trustee for the Dew Trust (Dew Trust), which provides a range of in-home care health services.

• [2] Dew Trust objects to the application on the ground that Mr Dalisay did not serve the minimum employment period. Mr Dalisay was employed on 24 March 2025. Both parties agree that he was given notice of dismissal on 4 September 2025, and the dismissal took effect of 5 September 2025. Mr Dalisay's service equates to 5 months and 14 days.

• [3] For an employee to be a person protected from unfair dismissal within the meaning of s 382 of the Act, they must have completed a minimum employment period. As Dew Trust is not a small business, the applicable minimum employment period is six months.

• [4] On 28 October 2025, Mr Dalisay wrote to my Chambers requesting that his response to the minimum employment period objection be considered on written submissions only. Mr Dalisay's submissions primarily went to the alleged merits of his case and sought that the Commission exercise discretion to allow his application to proceed.

• [5] On 30 October 2025, my Chambers wrote to both Mr Dalisay and Dew Trust noting Mr Dalisay's request and seeking consent for my decision on the minimum employment period objection be made on the papers. I also advised both parties that they could file additional written submissions or evidence prior to my decision.

• [6] On 5 November 2025, Dew Trust consented to the decision being made on the papers, and on 18 November 2025 Mr Dalisay also consented, and advised he would not file any further submissions.

• [7] Unfortunately for Mr Dalisay, the minimum employment period is set by legislation, and the Fair Work Commission has no discretion in this regard.

• [8] I find that Mr Dalisay did not complete the minimum employment period of six months and therefore is not a person protected from unfair dismissal (ss.382(a), 383(b) and 384 of the Act), and the Commission does not have jurisdiction to deal with his application.

• [9] As Mr Dalisay has not served the minimum employment period, his application must be dismissed.

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