1 Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Ryan Cale v The Montague Vion Family Trust (U2026/5789) DEPUTY PRESIDENT BEAUMONT PERTH, 13 MAY 2026 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 Issue and outcome [1] On 27 March 2026, Ryan Cale (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 The Montague Vion Family Trust on 11 September 2025 and that they were notified of their dismissal on 9 March 2026. On the information provided by the Applicant, they were employed for under six 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 six 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 minimum employment period was six months. [5] Commission staff contacted the Applicant by email on 31 March 2026. The Applicant was informed that based upon the information in their Application, they had not completed the minimum employment period. The Applicant was also placed on notice that their Application was very likely to be dismissed if no response was received by 7 April 2026. On 31 March 2026, Commission staff sent the Applicant an SMS alerting the Applicant to the fact that the Application required attention. The Applicant did not respond to the Commission’s correspondence. [2026] FWC 1732 DECISION AND ORDER [2026] FWC 1732 2 [6] Commission staff telephoned the Applicant and left a voicemail message on 24 April 2026, instructing the Applicant to return the Commission’s telephone call concerning the minimum employment period issue. The Applicant did not return the Commission's telephone call. [7] My Chambers contacted the Applicant by email on 5 May 2026. The Applicant was directed to provide their response with respect to the minimum employment period or to provide any submissions regarding the potential dismissal of the Application within a set period. The Applicant was put on notice that absent receipt of their response within that timeframe, the Application would be dismissed without further notice. To date, the Commission has received no response. Section 587 – general principles [8] 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. [9] 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 [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. [10] Importantly, applicants must be given a fair opportunity to show that their application does in fact have some reasonable prospects of success. Reasonable prospects of success [11] The Commission cannot consider the fairness of the Applicant’s dismissal until it is established that they are protected from unfair dismissal. [12] 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. [13] 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. [14] 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. [15] I am satisfied that the Application has no reasonable prospect of success within the meaning of s 587(1)(c) of the Act. It is therefore appropriate in the circumstances to dismiss [2026] FWC 1732 3 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 Ryan Cale on 27 March 2026 is dismissed. DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <PR799980>