Fair Work Act 2009

s.394 - Unfair dismissal

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 11 July 2025, Mrs Naomi N Duaka made an unfair dismissal application under s.394 of the Fair Work Act 2009 (Cth).

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

• [3] Mrs Duaka stated in her application that she commenced employment with G.J. & K. Cleaning Services Pty. Limited on 8 March 2025 and that her dismissal took effect on 10 July 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 Mrs Duaka, her period of employment was less than 6 months.

• [5] On 21 July 2025, Commission staff emailed Mrs Duaka informing her that she had not served the applicable minimum employment period based on the information that she had provided in her application. The email directed Mr Nicklason to file evidence to show that he had served the minimum employment period. On 4 August 2025, Mrs Duaka called the Commission advising that the correct start date of her employment was 8 February 2025 and Commission staff advised that she still did not meet the minimum employment period. Mrs Duaka stated that she did meet the minimum employment period and wanted the matter to continue.

• [6] On 8 September 2025, a final attempt was made to contact Mrs Duaka by email, which required a response by 15 September 2025. Mrs Duaka has not since responded to the Commission's email.

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. 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 Duaka's application have any reasonable prospects of success?

• [10] The Commission cannot consider the fairness of Mrs Duaka's dismissal until it is clear that she is eligible to make an unfair dismissal claim, whether her start date is 8 February 2025 or 8 March 2025.

• [11] The information provided by Mrs Duaka 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 Mrs Duaka'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 Mrs Naomi N Duaka on 11 July 2025 is dismissed.

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