Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

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 4 March 2026, Rubie Adam (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 Redcape Hotel Group Pty Ltd (the Respondent) on 9 December 2025 and that their dismissal took effect on 4 March 2026. On the information provided by the Applicant, they were employed for under 3 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.

[5] Commission staff contacted the Applicant by email on 10 March 2026. The Applicant was advised that based upon the information in their Application, they had not completed the minimum employment period. The Applicant was also advised that their Application was very likely to be dismissed if no response was received by 17 March 2026.

[6] The Applicant replied to the Commission's correspondence on 17 March 2026, writing:

"I worked for this same employee just with a difference license between march 2023- and december 2023.

I came back to the job based on my past work and it was never stated verbally or in writing that my new employment wouldnt recognise my old employment with the same company"

[7] On 26 March 2026, my Chambers emailed the Applicant, again explaining the minimum employment period requirements to lodge an unfair dismissal application under the Act. The correspondence noted the continuous service requirements as defined in s 22 of the Act. It was further noted that the Applicant's period of service from March to December 2023 would not be included as service for the purposes of the minimum employment period, regardless of what the Respondent advised the Applicant.

[8] The Applicant was afforded the opportunity to demonstrate that they had met the minimum employment period, or to provide any submissions as to why I should not dismiss the matter under s 587 of the Act, by 1 April 2026. The Applicant was advised that their Application may be dismissed without further notice should they not provide a response by this deadline. No further correspondence has been received from the Applicant to date.

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.

[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.

[15] The Applicant has 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]). Namely, that the Applicant has not met the minimum employment period.

[16] I am satisfied that the Application has no reasonable prospect of success within the meaning of s 587(1)(c). It is therefore 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:

1. The Application under s 394 of the Fair Work Act 2009 (Cth) made by Rubie Adam on 4 March 2026 is dismissed.

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