s.394 - Unfair dismissal

Application for an unfair dismissal remedy - Applicant asked to address minimum employment period - Applicant failed to respond to communications from FWC - application has no reasonable prospects of success - application dismissed pursuant to s.587 of the Act.

• [1] On 28 April 2025, Ms Hannah Galbraith (the Applicant) applied under s.394 of the Fair Work Act (the Act) for a remedy for alleged unfair dismissal. On 15 August 2025, C and A Taylor Grading Pty Ltd (the Respondent) lodged a response to the application, indicating a jurisdictional objection that the Applicant was not dismissed. The matter was allocated to my Chambers on 2 September 2025.

• [2] Having examined the application and the response, it seemed clear to me that the parties agreed that the Respondent was a small business as defined in the Act, and that the Applicant had less than one year's service. Given this, I caused my Chambers to write to the Applicant as follows, on 3 September 2025:

Your unfair dismissal claim has been allocated to Deputy President O'Keeffe. The Deputy President has examined the material submitted by yourself and the Respondent. While the Respondent has raised a jurisdictional objection to your application by claiming that you were not dismissed, it would appear that there is a further problem.

In your application, you state that you commenced employment in July 2024 and were dismissed on 7 April 2025. This is clearly a period of employment that is less than one year. In your application you also state that the Respondent employer had between 1 and 14 employees.

Where an employer has less than 15 regular employees, it is defined as a small business for the purposes of the Fair Work Act. To be protected from unfair dismissal when working in a small business an employee needs to have completed a minimum employment period of one year (see Fair Work Act section 383).

As you appear to have been employed by a small business for a period that is less than one year, you would not be protected from unfair dismissal and the Fair Work Commission therefore cannot deal with your application.

The Deputy President notes that the Respondent, in its reply Form F3, has confirmed that it has less than fifteen employees and so is a small business. While the Respondent has asserted a different period of employment (suggesting you commenced in January 2025) that period is also less than one year.

In summary, both you and the Respondent have provided information to the Commission that suggests that you have not completed the required minimum employment period of one year and are therefore not a person protected from unfair dismissal.

In these circumstances, the Deputy President believes that your application is capable of being dismissed because it has no reasonable prospects of success.

However, you are invited to provide - in writing - any arguments you would like to make with respect to why you are a person protected from unfair dismissal and why your application should be allowed to proceed. Such arguments should be received in Chambers by no later than 4.00pm (AWST) on Friday 5th September 2025.

You should be aware that if no response is received, the Deputy President may dismiss your application without any further correspondence being sent to you."

• [3] No response was received from the Applicant. Given this, on 18 September 2025, I caused my Chambers to write to the Applicant as follows:

Deputy President O'Keeffe refers you to the email sent on 3 September 2025 requesting a response from you to his concern about you not meeting the required minimum employment period.

As you have provided no response, the Deputy President is inclined to dismiss your application. However, you are given with a final opportunity to provide submissions on why you meet the required minimum employment period. Such submissions should be received by 12 noon (AWST) Friday 19th September 2025.

You are advised that if no response is provided your application will be dismissed."

• [4] As at 1.00pm (AWST) on 19 September 2025 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 correspondence from the FWC which sought to establish whether her application was capable of proceeding. She has then again failed to respond to correspondence advising that her claim was in jeopardy of being dismissed. In effect, the Applicant has failed to prosecute her claim. In addition, s.587(1)(c) provides the FWC with the power to dismiss applications that have no reasonable prospects of success. Given that it is uncontroversial between the parties that the Applicant does not meet the required minimum employment period, her application has no reasonable prospects of success.

• [6] 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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