Adam Kemp v The Trustee For Jacob Family Trust [2026] FWC 148

1 Fair Work Act 2009 s.394—Unfair dismissal Adam Kemp v The Trustee For Jacob Family Trust (U2025/16899) DEPUTY PRESIDENT EASTON SYDNEY, 15 JANUARY 2026 Application for an unfair dismissal remedy – minimum employment period – dismissal under s.587(1)(c) at the Commission’s initiative - application has no reasonable prospects of success. [1] On 22 October 2025, Mr Adam Kemp 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 Mr Kemp’s application has no reasonable prospects of success and should be dismissed. [3] In his Form F2 Unfair Dismissal Application Mr Kemp indicated that he commenced employment with The Trustee for Jacob Family Trust on 9 August 2025 and that his dismissal took effect on 2 October 2025. On the information provided by Mr Kemp, he was employed for 1 month, 3 weeks and 2 days. [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 Mr Kemp the period of employment was less than 6 months. [5] Commission staff contacted Mr Kemp on 29 October, 19 November and 25 November 2025 by telephone, SMS and email regarding the Minimum Employment Period. [6] Mr Kemp responded on 19 November and 20 November 2025, however, he did not provide any relevant information regarding the basis upon which he has completed the minimum employment period. [7] On 28 November 2025 Mr Kemp emailed chambers and confirmed that he had worked for less than 6 months. [2026] FWC 148 DECISION AND ORDER -- 1 of 3 -- [2026] FWC 148 2 [8] Mr Kemp has been on notice of the likely consequences if he does not provide further information that supports his eligibility to make the application. [9] To date Mr Kemp has not provided any further information that supports his eligibility to make the application. Section 587 – General Principles [10] 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. [11] 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. [12] Importantly, applicants must be given a fair opportunity to show that their application does in fact have some reasonable prospects of success. Does Mr Kemp’s application have any reasonable prospects of success? [13] The Commission cannot consider the fairness of Mr Kemp’s dismissal until it is clear that he is eligible to make an unfair dismissal claim. [14] The information provided by Mr Kemp on his Form F2 application strongly indicates that he is not eligible to make an unfair dismissal application because he does not appear to have served the minimum employment period. [15] Mr Kemp had the opportunity to provide information that could show that he had in fact completed the minimum employment period. However Mr Kemp has not provided any information that is consistent with him having done so. Mr Kemp has also had the opportunity to put his case for consideration on all matters material to the decision to dismiss the application under s.587 (see Bond at [15]-[16]). [16] I am satisfied that Mr Kemp’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 his application on the Commission’s own initiative using the facility available in s.587(3)(a). I make the following order: -- 2 of 3 -- [2026] FWC 148 3 A. The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Adam Kemp on 22 October 2025 is dismissed. DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <PR795914> -- 3 of 3 --