1 Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Tuituu A Lavaka Kaifa (U2025/19671) DEPUTY PRESIDENT EASTON SYDNEY, 2 JUNE 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. [1] On 12 December 2025, Tuituu A Lavaka Kaifa (the Applicant) made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth). [2] For the following reasons I am satisfied that the Applicant’s application has no reasonable prospects of success and should be dismissed. [3] In their Form F2 Unfair Dismissal Application the Applicant indicated that they commenced employment with State Asphalt Services Pty Limited on 20 October 2025 and that their dismissal took effect on 11 December 2025. On the information provided by the Applicant, they were employed for 2 months and 1 day. [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 the Applicant the period of employment was less than 6 months. [5] Commission staff attempted to contact the Applicant on 17 December 2025 and 16 January 2026 by telephone, SMS and email regarding the Minimum Employment Period. Section 587 – General Principles [6] 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. [2026] FWC 2022 DECISION AND ORDER [2026] FWC 2022 2 [7] 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. [8] Importantly, applicants must be given a fair opportunity to show that their application does in fact have some reasonable prospects of success. Does Tuituu A Lavaka Kaifa’s application have any reasonable prospects of success? [9] The Commission cannot consider the fairness of the Applicant’s dismissal until it is clear that they are eligible to make an unfair dismissal claim. [10] The information provided by the Applicant on their Form F2 application strongly indicates that they are not eligible to make an unfair dismissal application because they do not appear to have served the minimum employment period. [11] 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. The Applicant has also had the opportunity to put their case for consideration on all matters material to the decision to dismiss the application under s.587 (see Bond at [15]-[16]). [12] I am satisfied that the Applicant’s claim has no reasonable prospect of success within the meaning of s.587(1)(c), and that it is appropriate in the circumstances to dismiss their 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 Tuituu A Lavaka Kaifa on 12 December 2025 is dismissed. DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <PR810617>