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 3 July 2025, Ms Oshen Blair made an unfair dismissal application under s.394 of the Fair Work Act 2009 (Cth).

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

• [3] Ms Blair stated in her application that she commenced employment with Bapcor Limited on 13 May 2025 and that her dismissal took effect on 2 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 Ms Blair, her period of employment was less than 6 months.

• [5] On 11 July 2025, Commission staff emailed Ms Blair informing her that she had not served the applicable minimum employment period based on the information that she had provided. The email directed Ms Blair to file evidence to show that she had served the minimum employment period. That correspondence also warned Ms Blair that if she did not contact the Commission within 14 days, her application may be dismissed without further notice.

• [6] Further attempts to contact Ms Blair were made by phone call on 11 July 2025 and 24 July 2025. Ms Blair could not be reached and voicemails were left requesting her to contact the Commission.

• [7] On 28 August 2025, a final attempt to contact Ms Blair was made by email, which required a response by 3 September 2025.

• [8] Ms Blair has not responded to the Commission's multiple attempts to contact her in relation to her Form F2 application.

Section 587 - General Principles

• [9] 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.

• [10] 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.

• [11] Importantly, applicants must be given a fair opportunity to show that their application does in fact have some reasonable prospects of success.

Does Ms Blair's application have any reasonable prospects of success?

• [12] The Commission cannot consider the fairness of Ms Blair's dismissal until it is clear that she is eligible to make an unfair dismissal claim.

• [13] The information provided by Ms Blair indicates that she is not eligible to make an unfair dismissal application because she was employed for less than six months.

• [14] I am satisfied that Ms Blair'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 Ms Blair on 3 July 2025 is dismissed.

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

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