Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - jurisdictional objection - minimum employment period - whether Applicant had six months' continuous service - Applicant failed to comply with directions - no reasonable prospects of success - application dismissed.

• [1] On 21 May 2025, Mr Jack Duncan made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed from his employment with Mining Pro Services Pty Ltd (the Respondent), and that the dismissal was harsh, unjust or unreasonable.

• [2] It is uncontested that Mr Duncan commenced employment with the Respondent in mid-May 2024. He was dismissed on 15 May 2025, a period just in excess of 12 months.

• [3] The Respondent is not a small business and therefore the minimum employment period Mr Duncan would need to serve to be able to bring his claim is six months.[1]

• [4] In the Form F3 Employer Response filed by the Respondent, it declared that Mr Duncan had completed only around 4.8 months' service on account of regular non-attendance at work on unpaid leave. Mr Duncan did not attend work for five entire months, together with a large number of weeks in most other months.

• [5] Directions were issued to the parties to provide evidence to the Commission to deal with the minimum employment period. On 7 July 2025, the Respondent complied with the directions and filed material demonstrating Mr Duncan worked only 72 shifts in the period in which he was employed.

• [6] The directions required Mr Duncan to file material by no later than 22 July 2025 and participate in a conference before me on 1 July 2025. Mr Duncan failed to attend the conference and failed to file material by 22 July 2025. The matter was listed for a non-compliance hearing on 8 August 2025.

• [7] At the non-compliance hearing on 8 August 2025, Mr Duncan gave evidence that he was hospitalised between 1 July 2025 and 14 July 2025.

• [8] I explained to Mr Duncan that the evidence filed by the Respondent was very compelling and my preliminary view was that he would be unable to demonstrate that he could meet the minimum employment period. Mr Duncan stated that he did not understand that the periods he was on leave without pay would not count towards continuous service. I explained to him that those periods do not count towards continuous service and invited Mr Duncan to withdraw his application. He stated that he would consider withdrawing his application by the end of 8 August 2025.

• [9] Mr Duncan has not yet withdrawn his application. I am satisfied that even if Mr Duncan was granted an extension of time in which to file material before the Commission, he would not be able to demonstrate that he has met the minimum employment period of six months.

• [10] Section 587 of the Act provides as follows:

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

• [11] I decline to grant Mr Duncan an extension of time in which to file his material. Mr Duncan's case is patently without reasonable prospects of success. For this reason, I have decided to dismiss Mr Duncan's application pursuant to s.587(3)(a) of the Act.

An Order [PR790576] to this effect will be issued.

[1] Fair Work Act 2009 (Cth) s.383.

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