Annette Mouat v Emeco Holdings Limited [2026] FWC 1006

1 Fair Work Act 2009 s.394—Unfair dismissal Annette Mouat v Emeco Holdings Limited (U2026/193) DEPUTY PRESIDENT BEAUMONT PERTH, 24 MARCH 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 5 January 2026, (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). For the reasons that follow, I am satisfied that the Application has no reasonable prospects of success and should be dismissed. [2] The Applicant indicated in her Application that employment commenced with ‘Emeco Holdings Limited on 22 October 2025 and that her dismissal took effect on 5 January 2026. [3] Sections 382 and 383 of the Act provide that a person can only make an unfair dismissal application if they had completed a minimum period of employment before dismissal. Section 383 of the Act defines the minimum employment period, providing that for an employer that is not a small business employer the period is six months ending at the earlier of either the time when the person is given notice of the dismissal or immediately before the dismissal, and if the employer is a small business employer – it is one year ending at that time. [4] On 13 January 2026, Commission staff sought further information from the Applicant about whether the minimum employment period had been completed. The Applicant was instructed to provide a response by 20 January 2026 and informed that if the Commission did not receive a response in that timeframe, it was likely the Application would be dismissed without further notice. [5] On 19 January 2026, the Applicant replied to that email. The entirety of the Applicant’s email read, ‘Can I please change this to a General Protections’. [6] On 19 January 2026, Commission staff responded informing the Applicant that ‘[s]hould [she] wish to lodge a General Protections dismissal application, [she] may want to considering discontinuing [her] Unfair Dismissal application, as two types of dismissal application cannot be active at the same time.’. [2026] FWC 1006 DECISION AND ORDER -- 1 of 2 -- [2026] FWC 1006 2 [7] The Applicant has been on notice of the likely consequence if further information in support of the Application was not provided by 20 January 2026. To date, the Applicant has not provided any such information. [8] Subject to affording procedural fairness, s 587 of the Act allows the Commission to dismiss an application on the Commission’s own initiative in the early stages of proceedings. Protracted proceedings can be avoided when there is no reasonable prospect of an outcome other than the dismissal of the application. However, the power under s 587 should be used with caution, particularly if the matter involves complex questions of fact or law. The power under s 587 is not available if there are live facts in issue that could affect the outcome of the proceedings (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [11]- [16] (‘Bond’) and the cases cited therein). [9] I am satisfied that the Applicant has had the opportunity to put a case for consideration on all matters material to the making of the decision to dismiss the Application under s 587 (see Bond at [15]-[16]). The Applicant was invited to provide information that could show that the minimum employment period had been completed. The Applicant did not provide any response that was consistent with having served the minimum employment period, nor did any response raise the potential for any dispute about facts that could change the outcome of the Application. [10] It follows that I am satisfied that the Application has no reasonable prospect of success within the meaning of s 587(1)(c) of the Act, and that it is appropriate in the circumstances to dismiss the Application on the Commission’s own initiative by 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 Annette Mouat on 5 January 2026 is dismissed. DEPUTY PRESIDENT Matter determined on the papers Printed by authority of the Commonwealth Government Printer <PR797988> -- 2 of 2 --