Fair Work Act 2009

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 7 July 2025, Ms Mary Cini 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 Cini's application has no reasonable prospects of success and should be dismissed.

• [3] Ms Cini stated in her application that she commenced employment with Big Childcare in March 2025. Ms Cini advised that she did not know the exact date. Ms Cino also stated that her dismissal took effect on 19 June 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 Cini, her period of employment was less than 6 months.

• [5] Commission staff provided Ms Cini with information regarding the minimum employment period via email on 16 July 2025. The Commission contacted Ms Cini by telephone on 16 July 2025. During the call Ms Cini acknowledged that she had not met the minimum employment period. Ms Cini has not been in contact with the Commission following this call. On 31 July 2025, my Chambers attempted to reach Ms Cini via telephone. Ms Cini did not respond to this call.

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 Ms Cini's application have any reasonable prospects of success?

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

• [10] The information provided by Ms Cini indicates that she is not eligible to make an unfair dismissal application because she was employed for less than six months. Ms Cini acknowledged this over the telephone with Commission staff.

• [11] I am satisfied that Ms Cini'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 Mary Cini on 7 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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