Fair Work Act 2009

s 394 - Unfair dismissal

Application for relief from unfair dismissal - minimum employment period - dismissal under s.587(1)(c) at the Commission's initiative - application has no reasonable prospects of success.

[1] On 14 January 2026, Nishio Shoki (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 S&A AU Group (the Respondent) on 4 July 2025 and that their dismissal took effect on 28 December 2025. On the information provided by the Applicant, they were employed for approximately five months and 25 days.

[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 Respondent was a small business employer. In any event, on the information provided by the Applicant, the period of employment was less than 6 months.

[5] Commission staff contacted the Applicant by email and SMS on 20 January 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 27 January 2026. The Applicant was advised that the Application was very likely to be dismissed if they did not respond. The Commission received no response.

[6] My Chambers contacted the Applicant by email on 20 March 2026, noting the Commission's correspondence of 20 January 2026 and the lack of response from the Applicant. The Applicant was informed that I was considering the dismissal of the Application and provided with an opportunity to demonstrate that they had worked for the minimum employment period and to make any submissions concerning the potential dismissal of their Application by 27 March 2026. The Applicant was informed that absent a response within this timeframe, their Application would be dismissed without further notice. To date, no response has been received from the Applicant.

Section 587 - General Principles

[7] 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.

[8] 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.

[9] 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?

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

[11] 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.

[12] 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]).

[13] 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 make the following order:

A. the application under s 394 of the Fair Work Act 2009 (Cth) made by Nishio Shoki on 14 January 2026 is dismissed.

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