s.394 - Unfair dismissal

Application for an unfair dismissal remedy - preliminary view not contested, no reasonable prospects of success - application dismissed.

• [1] Ms Triffitt (the Applicant) has made an application for an unfair dismissal remedy against her former employer, Kmart Australia Limited (the Respondent). The Application was filed on 1 September 2025. In that Application, the Applicant expressed uncertainty about the date her employment commenced ("I got hired sometime in January 2025 and had my first shift in February 2025") and also when she had been dismissed. In the course of a non-compliance hearing on 19 November 2025 (which the Applicant failed to attend), the Respondent accepted that the Applicant may not have become aware of her dismissal at all until it was communicated to her by the receipt of the Respondent's Form F3 Response to her Application. The Form F3 relevantly stated that the Applicant's employment had been terminated for abandonment of employment effective from 25 June 2025, after non-attendance to rostered shifts and unsuccessful attempts at making contact with the Applicant.

• [2] On 26 November 2025, I published a Statement and further Directions in this matter. The Statement relevantly recited undisputed facts that the Applicant had been a casual employee and had worked only one shift of work with the Respondent throughout her employment. The Directions sought that the parties respond to a preliminary view expressed in the Statement. The preliminary view was as follows:

The Act precludes the Commission from ordering any remedy to a person making an unfair dismissal claim if the Commission is not satisfied that the person was "protected from unfair dismissal".1 One of the requirements that must met in order for a person to be "protected from unfair dismissal" is that they have met the "minimum employment period".2 In circumstances where the employer is not a small business employer, this requires a period of 6 months of continuous service prior to the dismissal.3 In the case of a casual employee, a period of service will not count toward the minimum employment period unless, among other things, the employee was a "regular casual employee".4 In order to meet the definition of a "regular casual employee", an employee must among other things have been employed on "a regular and systematic basis".5 My preliminary view is that the Applicant having worked only one shift means that it will not be possible for her satisfy the threshold that she has worked on a regular and systematic basis for the minimum employment period. If that is correct, the Applicant was not "protected from unfair dismissal" at the relevant time and the application has no reasonable prospects of success, such that that it would open to me dismiss the application under section 587(1)(c) of the Act.

• [3] The Directions issued in conjunction with the Statement provided the parties until 4:00PM on 5 December 2025 to indicated whether they accepted the preliminary view. The Directions also provided that if no party opposed the preliminary view by that time, the application would be dismissed. The Respondent provided written notice on 2 December 2025 that it accepted that preliminary view. The Applicant did not provide any response. Accordingly, no party has opposed the preliminary view.

• [4] As foreshadowed in the Statement and Directions, I now exercise my discretion to dismiss the matter pursuant to section 587(1)(c) of the Act. An order giving effect to this decision is published separately.[1]

[1] PR795072.

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