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 6 December 2025, Miss Makayla Cuthbertson made an unfair dismissal application under s.394 of the Fair Work Act 2009 (Cth).

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

[3] Miss Cuthbertson stated in her application that she commenced employment with Palcove Pty Ltd. on 26 May 2025 and that her dismissal took effect on 25 November 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 Miss Cuthbertson, her period of employment was less than 6 months.

[5] Commission staff provided Miss Cuthbertson with information regarding the minimum employment period via email on 11 December 2025. My Chambers also emailed Miss Cuthbertson on 23 January 2026 advising that the minimum employment period has not been met and if she does not contact the Commission by 30 January 2026, her application may be dismissed under s.587(1)(c).

[6] Miss Cuthbertson has not responded to the Commission's multiple attempts to contact her in relation to her application.

Section 587 - General Principles

[7] 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.

• [8] 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.

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

Does Miss Cuthbertson's application have any reasonable prospects of success?

[10] The Commission cannot consider the fairness of Miss Cuthbertson's dismissal until it is clear that she is eligible to make an unfair dismissal claim.

[11] The information provided by Miss Cuthbertson indicates that she is not eligible to make an unfair dismissal application because she was employed for less than six months.

[12] I am satisfied that Miss Cuthbertson'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 Miss Makayla Cuthbertson on 6 December 2025 is dismissed.

[1] See generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [11]- [16].

Printed by authority of the Commonwealth Government Printer