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 9 February 2026, Mr Tyrone Jaspher Cruz (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 Barcaldine Meat Barn (the Respondent) on 25 November 2025 and that they were notified of their dismissal on 23 January 2026. On the information provided by the Applicant, they were employed for under two 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] In addition to the above minimum employment period issues, the Application was not made in accordance with the Act (s 587(1)(a)) because the prescribed fee (see s 395 of the Act) has not been paid or waived.

[6] Commission staff contacted the Applicant by email on 12 February 2026. The Applicant was advised that based upon the information in their Application, they had not completed the minimum employment period. The Applicant was provided with an opportunity to demonstrate that they had worked for the minimum employment period and advised to file any material by 19 February 2026. The Applicant was advised that the Application was very likely to be dismissed if they did not respond.

[7] On 24 February 2026, Commission staff contacted the Applicant to advise them that the waiver application they lodged was blank. The Applicant was directed to provide a completed waiver application or pay the prescribed fee by 3 March 2026. The Applicant was advised that their Application may be dismissed if they did not make the payment or provide a completed waiver application.

[8] To date, no response has been received from the Applicant with respect to both of these issues.

Section 587 - General Principles

[9] 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.

[10] 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.

[11] 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?

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

[13] 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.

[14] 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. The Applicant has also 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]).

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

1. The application under s 394 of the Fair Work Act 2009 (Cth) made by Mr Tyrone Jaspher Cruz on 9 February 2026 is dismissed.

Printed by authority of the Commonwealth Government Printer