1 Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Kai Jones v National Disability Insurance Agency (U2026/4998) DEPUTY PRESIDENT BEAUMONT PERTH, 15 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 6 April 2026, Kai Jones (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 National Disability Insurance Agency on 29 September 2025 and that they were notified of their dismissal on 23 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 10 April 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 17 April 2026. The Applicant did not respond to the Commission’s correspondence [2026] FWC 1758 DECISION AND ORDER [2026] FWC 1758 2 [6] Commission staff telephoned the Applicant on 15 April 2026. The Applicant did not answer the telephone call and a voice message was unable to be left. [7] My Chambers contacted the Applicant by email on 28 April 2026. The Applicant was directed to provide their response with respect to the minimum employment period issue 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. A SMS was sent to the Applicant’s mobile telephone number alerting them to important correspondence being sent to their email address. [8] The Applicant replied on 28 April 2026, writing: Hello Deputy President Beaumont and team, My complaint is about dismissal being unjust, under what circumstances is it acceptable to discontinue someone's employment with the circusmstances I've documented? Regards Kai [9] My Chambers sent a second email on 7 May 2026. The correspondence informed the Applicant that the Commission cannot consider the merits of the application until it is satisfied that they are a person protected from unfair dismissal. The Applicant was afforded a further opportunity to demonstrate that they met the minimum employment period. 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 again put on notice that absent receipt of their response within that timeframe, the Application would be dismissed without further notice. The Applicant has not responded to date. Section 587 – general principles [10] 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. [1] 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. [2] Importantly, applicants must be given a fair opportunity to show that their application does in fact have some reasonable prospects of success. [2026] FWC 1758 3 Reasonable prospects of success [3] The Commission cannot consider the fairness of the Applicant’s dismissal until it is established that they are protected from unfair dismissal. [4] 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. [5] 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. [6] 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. [7] 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 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 Kai Jones on 6 April 2026 is dismissed. DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <PR810017>