Harrison Kay v The Trustee for Wds Hotels Trading Trust

[2025] FWC 3044

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Harrison Kay
v

The Trustee For Wds Hotels Trading Trust

(U2025/12865)

DEPUTY PRESIDENT EASTON

SYDNEY, 10 OCTOBER 2025

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.

On 7 August 2025, Mr Harrison Kay made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

For the following reasons I am satisfied that Mr Kay’s application has no reasonable prospects of success and should be dismissed.

In his Form F2 Unfair Dismissal Application Mr Kay indicated that he commenced employment with The Trustee for WDS Hotels Trading Trust on 28 April 2025 and that his dismissal took effect on 2 August 2025. On the information provided by Mr Kay, he was employed for 3 months and 5 days.

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 Kay the period of employment was less than 6 months.

Commission staff attempted to contact Mr Kay on 11 August and 24 September 2025 by telephone, SMS and email regarding the Minimum Employment Period.

Section 587 – General Principles

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.

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.

Importantly, applicants must be given a fair opportunity to show that their application does in fact have some reasonable prospects of success.

Does Mr Kay’s application have any reasonable prospects of success?

The Commission cannot consider the fairness of Mr Kay’s dismissal until it is clear that he is eligible to make an unfair dismissal claim.

The information provided by Mr Kay 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.

Mr Kay had the opportunity to provide information that could show that he had in fact completed the minimum employment period. However Mr Kay has not provided any information that is consistent with him having done so. Mr Kay 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]).

I am satisfied that Mr Kay’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:

A.The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Harrison Kay on 7 August 2025 is dismissed.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

Mr Harrison Kay sought an unfair dismissal remedy against The Trustee for WDS Hotels Trading Trust before the Fair Work Commission, arguing that his dismissal was unjust. The Trustee, in response, contended that Mr Kay’s dismissal should not proceed as he had not satisfied the minimum employment period required to lodge such a claim under the Fair Work Act 2009. The Commission was tasked with determining whether Mr Kay’s application had reasonable prospects of success and whether it should be dismissed under section 587(1)(c) at the Commission’s initiative.

The central issue before the Commission was whether Mr Kay had met the statutory threshold for making an unfair dismissal claim. According to sections 382 and 383 of the Fair Work Act 2009, an employee must have completed a minimum employment period, which could be either 6 or 12 months, depending on the size of the employer. Mr Kay indicated that he had been employed for less than 6 months, raising questions about his eligibility to lodge the claim. The Commission also considered whether there were any reasonable prospects of Mr Kay’s application succeeding, despite the short employment period. The Commission had the authority under section 587 to dismiss the application if it was evident that there were no reasonable prospects of success.

The Deputy President concluded that Mr Kay’s application had no reasonable prospects of success, primarily due to the insufficient employment period. Despite the Commission's attempts to contact Mr Kay for further information, he did not provide any evidence to suggest he had completed the required minimum employment period. The Deputy President noted that the power under section 587 should be exercised with caution, particularly in the absence of disputed facts. In this case, the Deputy President was satisfied that the application was without merit based on the provided information. Consequently, the application was dismissed on the Commission's own initiative, as it was clear that there were no reasonable prospects of success.

The final order of the Commission was that the application made by Mr Harrison Kay under section 394 of the Fair Work Act 2009 was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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