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 5 July 2025, Ms Jessica Ford made an unfair dismissal application under s.394 of the Fair Work Act 2009 (Cth).

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

• [3] Ms Ford stated in her application that she commenced employment with Anthony Lentini on 5 May 2025 and that her dismissal took effect on 3 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 Ms Ford, her period of employment was less than 6 months.

• [5] On 15 July 2025, Commission staff attempted to call Ms Ford on her nominated telephone number. A voicemail message was left requesting Ms Ford to contact the Commission.

• [6] On 15 July 2025, Commission staff emailed Ms Ford informing her that she had not served the applicable minimum employment period based on the information that she had provided. The email directed Ms Ford to file evidence to show that she had served the minimum employment period. That correspondence also warned Ms Ford that if she did not contact the Commission within 14 days, her application may be dismissed without further notice.

• [7] On 16 July 2025 and 4 August 2025, further attempts to contact Ms Ford were made by telephone. However, Ms Ford could not be reached. Voicemail messages were left requesting her to contact the Commission.

• [8] On 13 August, a final attempt to contact Ms Ford was made by email, which required a response by 20 August 2025.

• [9] Ms Ford has not responded to the multiple attempts made by Commission staff to contact her in relation to her 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 Ms Ford's application have any reasonable prospects of success?

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

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

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

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Ms Jessica Ford on 5 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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