Shien Fujihara v Jayde Harvey (Restaurant Manager), McDonald's

[2025] FWC 1912

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Shien Fujihara
v

Jayde Harvey (Restaurant Manager), McDonald’s

(U2025/5297)

DEPUTY PRESIDENT O’NEILL

MELBOURNE, 7 JULY 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 29 April 2025, Ms Shien Fujihara made an unfair dismissal application under s.394 of the Fair Work Act 2009 (Cth) (the Act).

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

Ms Fujihara stated in her application that she commenced employment with Jayde Harvey and McDonald’s on 28 February 2025 and that her dismissal took effect on 8 April 2025.

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 Ms Fujihara, her period of employment was less than 6 months.

Commission staff attempted to contact Ms Fujihara on 2 May 2025 by telephone and followed up with an email regarding the minimum employment period. On 16 May 2025, Commission staff attempted to contact Ms Fujihara by telephone. On 26 June 2025, my Chambers emailed Ms Fujihara requiring a response by 3 July 2025. No response has been received.

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.[1] An application should not be dismissed under s.587 unless it is very clear that there are no reasonable prospects of success and 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 Ms Fujihara’s application have any reasonable prospects of success?

The Commission cannot consider the fairness of Ms Fujihara’s dismissal until it is clear that she is eligible to make an unfair dismissal claim.

The information provided by Ms Fujihara indicates that she is not eligible to make an unfair dismissal application because she was employed for less than six months.

I am satisfied that Ms Fujihara’s claim has no reasonable prospect of success and that it is appropriate to dismiss her application. I make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Ms Shien Fujihara on 29 April 2025 is dismissed.

DEPUTY PRESIDENT

[1] See generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [11]-[16].

Printed by authority of the Commonwealth Government Printer

In this case, Shien Fujihara brought an unfair dismissal application against Jayde Harvey, her restaurant manager at McDonald’s, under section 394 of the Fair Work Act 2009. Fujihara claimed to have been dismissed on 8 April 2025, and that her employment began on 28 February 2025. The primary issue before the Commission was whether Fujihara was eligible to make an unfair dismissal application, given that the minimum employment period required by sections 382 and 383 of the Act is six months.

The Commission considered whether Fujihara's employment period met the statutory requirement for eligibility to lodge an unfair dismissal claim. According to the information provided, Fujihara had been employed for less than six months. The Commission staff made multiple attempts to contact Fujihara to seek clarification, but no response was received by the deadline. Section 587 of the Act permits the Commission to dismiss an application if it is evident that there are no reasonable prospects of success, particularly when the applicant is ineligible to bring the claim. Given the absence of a response and the clear ineligibility of the applicant based on the provided information, the Deputy President concluded that there were no reasonable prospects that Fujihara's application would succeed.

In light of the above, the Deputy President determined that Fujihara's application had no reasonable prospects of success and ordered that it be dismissed. The application, filed on 29 April 2025, was dismissed on 7 July 2025.

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