s.394 - Application for unfair dismissal remedy

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 29 September 2025, Mr Flynn James-Kirkwood 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 James-Kirkwood's application has no reasonable prospects of success and should be dismissed.

• [3] Mr James-Kirkwood stated in an email sent to the Commission on 7 October 2025 that he commenced employment with VIC Plumbing & Drainage Pty Ltd on 27 April 2025. Mr James-Kirkwood also stated that his dismissal took effect on 27 September 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 James-Kirkwood, his period of employment was less than 6 months.

• [5] My Chambers emailed Mr James-Kirkwood on 28 October 2025 advising that the minimum employment period has not been met and if he does not contact the Commission by 4 November 2025 his application may be dismissed under s.587(1)(c).

Section 587 - General Principles

• [6] 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.

• [7] 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.

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

Does Mr James-Kirkwood's application have any reasonable prospects of success?

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

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

• [11] I am satisfied that Mr James-Kirkwood'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 Flynn James-Kirkwood on 29 September 2025 is dismissed.

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

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