A worker dismissed by MN Aesthetics Group Pty Limited had served 9 months and 4 days when her employment ended. That fell short of the 12-month minimum employment period that applies to a small business employer. The Fair Work Commission has dismissed her unfair dismissal claim on its own initiative.
The worker started on 1 December 2024. The employer gave the same start date and said the dismissal took effect on 5 September 2025. She lodged her application under s.394 of the Fair Work Act 2009 the next day, 6 September 2025. It was not disputed that the employer had fewer than 15 employees at the time.
Under ss.382 and 383, a person can only bring an unfair dismissal claim after completing a minimum employment period. That period is 6 months, or 12 months where the employer is a small business employer.
Commission staff contacted the worker by SMS and email about the minimum employment period. On 19 January 2026 she asked to change her application to a general protections claim involving dismissal.
The Commission replied by email. It said it can switch an application to a different type only if it is satisfied the application was meant to be that type from the start and “was simply lodged on the wrong form”. Her application said, “I believe the dismissal was harsh, unjust and unreasonable”, which pointed to an unfair dismissal claim. She asked to transfer it only after being told she appeared not to meet the minimum period. The Commission received no reply to its later inquiries.
Deputy President Easton dismissed the application on the Commission’s own initiative under s.587(3)(a). The Deputy President found it had no reasonable prospects of success within the meaning of s.587(1)(c). The decision noted the power “should be used with caution” and that an application should not be dismissed “unless it is very clear that there are no reasonable prospects of success”. The worker was given a chance to show she had served the minimum period but “has not provided any information that is consistent with her having done so”.
At a glance
- Parties: A former employee v MN Aesthetics Group Pty Limited
- Citation: [2026] FWC 3725, Deputy President Easton, Sydney, 28 September 2026
- Section: s.394, ss.382 and 383, s.587(1)(c) and s.587(3)(a), Fair Work Act 2009
- Outcome: Application dismissed for no reasonable prospects of success
- Who it affects: Employees of small business employers with less than 12 months’ service
In this matter, the Commission treated the wording of the original application, and the timing of the request to change it, as showing that an unfair dismissal claim had been intended from the outset.
Source: [2026] FWC 3725
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