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 19 December 2025, Mr Kiril Dinevski 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 Dinevski's application has no reasonable prospects of success and should be dismissed.

[3] Mr Dinevski stated in his application that he commenced employment with VisyPak Operations Pty Ltd Trading as VisyPak on 23 June 2025 and that his dismissal took effect on 18 December 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.

[5] On 5 March 2026, Mr Dinevski confirmed that he has not met the minimum employment period. However, he submitted that his application should not be dismissed under s.587 of the Act "on a purely technical basis" and that the circumstances of his dismissal should be "reviewed to consider whether the termination was effected deliberately to circumvent the protections of the Act."

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 Mr Dinevski's application have any reasonable prospects of success?

[9] The Commission cannot consider the fairness of Mr Dinevski's dismissal unless he is eligible to make an unfair dismissal claim.

[10] Mr Dinevski acknowledges that that he was employed for less than six months. He is therefore ineligible to make an unfair dismissal application under s.394 of the Act. Mr Dinevski is correct in observing that the Act provides protections in some circumstances against being dismissed in contravention of the general protections provisions in the Act, regardless of the minimum employment period. However, Mr Dinevski's unfair dismissal application is not such an application.

[11] I am satisfied that Mr Dinevski's unfair dismissal application 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 Dinevski on 19 December 2025 in matter number U2025/20107 is dismissed.

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

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