Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for relief from unfair dismissal - minimum employment period - application fee not paid or waived - application not made in accordance with the Act - dismissal under s 587(1)(a) and s 587(1)(c) at the Commission's initiative - application has no reasonable prospects of success

[1] On 27 February 2026, Ms Kerry-Anne Lowe (the Applicant) made an unfair dismissal application (the Application) to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth) (the Act).

[2] For the following reasons I am satisfied that the Application has no reasonable prospects of success and should be dismissed.

[3] In their Application, the Applicant indicated that they commenced employment with Vision And Goals Pty Ltd (the Respondent) on 26 November 2025 and that their dismissal took effect on 27 February 2026. On the information provided by the Applicant, they were employed for 3 months.

[4] Section 382 of the Act provides that a person is only eligible to make an unfair dismissal application if they have completed a minimum employment period before their dismissal. Section 383 defines the minimum employment period to be either 6 months or one year, depending on whether the Respondent was a small business employer at the time of the dismissal. On the information provided by the Applicant, the period of employment was less than 6 months.

[5] Commission staff contacted the Applicant by email on 5 March 2026. The Applicant was advised that based upon the information in their Application, they had not completed the minimum employment period. The Applicant was also advised that their Application was very likely to be dismissed if no response was received by 12 March 2026. The Applicant did not respond to the Commission's correspondence.

[6] In addition to the above issue, the Application was not made in accordance with the Act (see s 587(1)(a)) because the prescribed fee (see s 395 of the Act) has not been paid or waived.

[7] On 11 March 2026, Commission staff advised the Applicant by email that their fee waiver request was refused. The Applicant was directed to pay the Application fee by 25 March 2026, otherwise the Application may be dismissed if payment was not made. The Applicant has not made payment to date.

Section 587 - General Principles

[8] Section 587 of the Act 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.

[9] The power under s 587 should be used with caution, particularly if the matter involves complex questions of fact or law (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [11]- [16] ('Bond')). An application should not be dismissed under s 587 unless it is very clear that there are no reasonable prospects of success. As such the power under s 587 is not available if there are disputed facts that could affect the outcome of the proceedings.

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

Does the Application have any reasonable prospects of success?

[11] The Commission cannot consider the fairness of the Applicant's dismissal until it is established that they are protected from unfair dismissal.

[12] The information provided by the Applicant in their Application strongly indicates that they are not protected from unfair dismissal because they do not appear to have served the minimum employment period.

[13] The Applicant had the opportunity to provide information that could show that they had in fact completed the minimum employment period. However, the Applicant has not provided any information that is consistent with them having done so. It is further observed that the Respondent asserts that the Applicant was not employed by the Respondent and has never been an employee of the Respondent.

[14] The Applicant has had the opportunity to put their case for consideration on all matters material to the decision to dismiss the application under s 587 of the Act (see Bond at [15]-[16]). Namely, that the Applicant has not met the minimum employment period and that the Application has not been made in accordance with the Act, as it remains unpaid.

[15] I am satisfied that the Application has no reasonable prospect of success within the meaning of s 587(1)(c) and that it was not made in accordance with s 587(1)(a) of the Act. It is therefore appropriate in the circumstances to dismiss the Application on the Commission's own initiative using the facility available in s 587(3)(a). I make the following order:

1. The application under s 394 of the Fair Work Act 2009 (Cth) made by Ms Kerry-Anne Lowe on 27 February 2026 is dismissed.

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