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 10 June 2025, Mr Dylan Adams made an unfair dismissal application under s.394 of the Fair Work Act 2009 (Cth).

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

• [3] Mr Adams stated in his application that he commenced employment with Dahlsens on 24 April 2024 and that his dismissal took effect on 3 June 2025. The letter of termination attached to Mr Adams' application also stated that Dahlsens did not intend to continue his employment, with his employment ending on 3 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 Mr Adams, his period of employment was less than 6 months.

• [5] Commission staff contacted Mr Adams by phone on 26 June and notified him of the minimum employment period issue with his application. Mr Adams said that he would consider the issue and notify the Commission by 5:00PM on 27 June 2025 of his response. No response was received from Mr Adams by 5:00PM on 27 June.

• [6] On 13 June, the Commission sent an email to Mr Adams notifying that:

The information in your application shows that you might not have worked for the minimum employment period.

The minimum employment period is the amount of time you must have worked for your employer before you can make an unfair dismissal application. There is more information on the next page.

• You told us that you were employed on 24 April 2025.
• You told us you were given notice of your dismissal on 3 June 2025.

To continue with your case, you need to show that you worked for the minimum employment period.

The deadline for providing this information is 27 June 2025.

If we don't hear from you by then, it's very likely your case will be dismissed without further notice.

No response to this email was received by the Commission by 27 June 2025.

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 Mr Adams' application have any reasonable prospects of success?

• [10] The Commission cannot consider the fairness of Mr Adams' dismissal until it is clear that he is eligible to make an unfair dismissal claim.

• [11] The information provided by Mr Adams indicates that he is not eligible to make an unfair dismissal application because he was employed for less than six months.

• [12] I am satisfied that Mr Adams' claim has no reasonable prospect of success and that it is appropriate to dismiss his application. I make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Dylan Adams on 10 June 2025 is dismissed.

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

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