s.394 - Unfair dismissal

Application for an unfair dismissal remedy - minimum employment period - section 587 - no reasonable prospects of success - dismissal of an application without a hearing - procedural fairness

• [1] On 29 March 2024, Mr Alan Geoffrey Bond made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009. Mr Bond advised in his Form F2 Unfair Dismissal Application that he commenced employment with Carbridge Pty Ltd on 27 November 2023 and that his dismissal took effect on 22 March 2024.

• [2] On the information provided by Mr Bond he worked for Carbridge for almost 4 months.

• [3] Sections 382 and 383 of the Fair Work Act 2009 (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:

(a) if the employer is not a small business employer - 6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(b) if the employer is a small business employer - one year ending at that time.

• [4] A longer minimum employment period, 12 months rather than 6 months, applies to employees of small business employers. The size of the employer's business is therefore very important for applicants who were employed for more than 6 months but less than 12 months. In cases requiring consideration of the minimum employment period, the size of the employer's business can be fertile ground for disagreement.

• [5] In Mr Bond's case it does not matter whether Carbridge is a small business employer because he does not appear to have completed the lesser minimum employment period of 6 months.

• [6] Commission staff sought further information from Mr Bond about whether he had served the minimum employment period:

(a) on 5 April 2024 the Commission attempted to contact Mr Bond on his nominated telephone number. A voicemail message was left explaining the minimum employment period requirement and requesting that Mr Bond contact the Commission to discuss his matter;

(b) later that day the Commission sent correspondence by email to Mr Bond indicating that the information provided in his Form F2 suggests that he had not served the minimum employment period. The correspondence directed Mr Bond to file any documents or evidence to support his claim that he had served the required minimum employment period. The correspondence also contained a warning that if he did not contact the Commission within 14 days his application might be dismissed without further notice;

(c) on the same day, Mr Bond responded asking for the Commission to obtain CCTV footage of the incident that led to his dismissal;

(d) later that day, Mr Bond contacted the Commission by phone to follow up on his email. A Commission staff member explained to Mr Bond that he may not meet the minimum employment period requirement and that he may need to discontinue his application, or that his application might be dismissed. Mr Bond became agitated and advised that he would not discontinue his application and asked that it be referred to a Member for his eligibility to be determined;

(e) on 3 May 2024 Mr Bond contacted the Commission by phone to seek an update on his matter. In this call Mr Bond confirmed that he still wanted the matter to be referred to a Member to be assessed; and

(f) later that day, Mr Bond emailed correspondence to the Commission with further information pertaining to the merits of his application.

• [7] On 9 May 2024 the matter was allocated to my Chambers.

• [8] On 16 May 2024 my Chambers sent correspondence to Mr Bond asking that he provide submissions on why his matter should not be dismissed under ss. 587(1)(a) or 587(1)(c) of the Act on the basis that the application was not properly made, or the application had no reasonable prospects of success.

• [9] On 17 May 2024 Mr Bond responded by providing information about the unfairness of his dismissal. Mr Bond asked again that his material be reviewed and that he be advised on his application. In his response Mr Bond did not address the minimum employment period at all.

• [10] There has been no hearing in relation to this threshold question. The deficiency in Mr Bond's claim is apparent from the application itself. There does not appear to be any disputed facts that are relevant to the threshold question.

Section 587

• [11] The relevant provisions in s.587 of the Act are as follows:

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospect of success.

• [12] Section 587(1)(c) of the Act is in similar terms to s.31A of the Federal Court of Australia Act 1976 (FCA Act). The decisions of the Full Court of the Federal Court in Upaid Systems Ltd v Telstra Corporation Limited [2016] FCAFC 158 at [46]- [49] and Nichol v Discovery Africa Ltd [2016] FCAFC 182 at [138]- [142] provide helpful summaries of the application of s.31A of the FCA Act. The Court's decisions in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia [2006] FCA 1352 at [41]- [48] and White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511 at [51]- [59], [2007] FCA 511; (2007) 160 FCR 298 at 310-312 are also regularly cited.

• [13] Earlier Full Bench decisions have considered the operation of s.587: see Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [19], Bibawi v Stepping Stone Clubhouse Inc [2019] FWCFB 1314 at [17], (2019) 285 IR 190 at 196, Chopra v Al Siraat College Inc & Ors [2023] FWCFB 266 at [56] and Elecnor Australia Pty Ltd [2024] FWCFB 245 at [20]- [23] and [29].

• [14] The following general principles can be derived from these cases:

(a) section 587 allows the Commission to dismiss an application on the Commission's own initiative or on application by a party (per s.587(3));

(b) the purpose of s.587(1)(c) is to enable the Commission to deal with matters that should not be litigated because there is no reasonable prospect of an outcome other than the dismissal of the application;

(c) section 587 is a provision that is available to use at the early stages of a proceeding before a full hearing is conducted;

(d) it could not have been the intention of the Parliament in introducing s.587 to require the Commission to engage in lengthy and elaborate hearings on an interlocutory basis for the purpose of determining whether or not a proceeding has reasonable prospects of success;

(e) as a general proposition it is inappropriate that the resources of the Commission and the parties are unnecessarily diverted towards protracted proceedings if an application has no reasonable prospects of success;

(f) the 'no reasonable prospects of success' test in s.587(1)(c) sets a lower bar than the common law test for obtaining summary judgement. It is not necessary to establish that an application is hopeless or bound to fail (per General Steel principles) in order to establish that an application has no reasonable prospects of success;

(g) the exercise of power under s.587 should be used with caution, particularly if the matter involves complex questions of fact or law; and

(h) an application has reasonable prospects of success if there are live facts in issue that could affect the outcome of the proceedings.

• [15] The power under s.587(1)(c) is subject to the Commission acting judiciously and affording applicants procedural fairness, noting again that the power is available without the need for a hearing:

(a) an applicant must be able to put his or her case to the decision-maker for consideration on all matters material to the making of the decision (per Hempenstall v Minister for Home Affairs [2020] FCAFC 216 at [39]);

(b) where there are specific aspects of an applicant's application that the Commission considers may be important to the decision and may be open to doubt, the Commission must at least ask the applicant to expand upon those aspects of the application (per SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [47], (2006) 231 ALR 592 at 602;

(c) when dealing with unrepresented parties it may be appropriate in certain circumstances for the Commission to direct the parties' attention to the relevant terms of the legislation and to invite submissions on the various statutory criteria (James Jones v Ciuzelis [2015] FWCFB 84 at [44]); and

(d) the expression procedural fairness conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case (Galloway v Molina and Zhai [2021] FWCFB 5419 at [22]- [29], [2021] FWCFB 5419; (2021) 310 IR 151 at 157-8).

• [16] To these principles I can add the following:

(a) the Commission must also be cautious in dismissing an application under s.587 based on the strengths or weaknesses of the originating document(s). It is regularly said that the Commission is not a court of pleading. Pleadings define the issues at trial, give notice to the other parties of the case they have to meet, affect the admissibility of evidence (meaning in their evidence parties cannot stray from their pleaded case) and so on. By contrast the Commission must exercise its powers in a manner that is "quick, informal and avoids unnecessary technicalities" (per s.577(1)(b)). Many applicants prepare their own originating documents without the assistance or advice of lawyers or other representatives. In this context originating documents, such as the Form F2 Application for Unfair Dismissal, must be considered with a keen eye (but not a blind eye) to the substance of the application rather than the form of the documentation; and

(b) section 587 should also be understood in conjunction with the cost provisions in s.611 and s.400A. These provisions read together indicate that Parliament intended to discourage the making of and the continuation of applications that are made vexatiously or without reasonable cause, or that have no reasonable prospect of success.

Does Mr Bond's application have any reasonable prospects?

• [17] Mr Bond is particularly aggrieved about the fairness of his dismissal. However the fairness or unfairness of the dismissal is not relevant to whether he has completed the minimum employment period. The Commission cannot consider the fairness of Mr Bond's dismissal until it is satisfied that he is eligible to make an unfair dismissal claim.

• [18] The information provided by Mr Bond on his Form F2 application strongly indicates that he is not eligible to make an unfair dismissal application. The Form F2 indicates that Mr Bond was employed for less than 6 months.

• [19] As such the options available to the Commission were to conduct a hearing into whether Mr Bond has served the minimum employment period, or to consider using the facility available under s.587. As referred to above, it is not appropriate that the resources of the Commission and the resources of the parties be unnecessarily spent on applications that seemingly have no reasonable prospects of success.

• [20] Mr Bond's application was not referred on for staff conciliation or allocated to a member of the Commission for programming in the ordinary course.

• [21] Instead, Commission staff contacted Mr Bond by email and telephone to inform him of the apparent deficiency of his application. Mr Bond declined the Commission's invitation to discontinue his claim.

• [22] Mr Bond was invited by correspondence to provide information that could show that he had in fact completed the minimum employment period. Mr Bond's responses only referred to the unfairness of his dismissal. Mr Bond 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 the facts that could change the outcome of his application.

• [23] Mr Bond was also specifically invited to provide submissions on why his matter should not be dismissed under ss. 587(1)(a) or 587(1)(c).

• [24] I am satisfied that Mr Bond has been able to put his case for consideration on all matters material to the making of the decision to dismiss his application under s.587.

• [25] I have been cautious to engage s.587. Although the Commission must exercise its powers in a manner that is quick, informal and avoids unnecessary technicalities, it must also act in a manner that is fair and just, and open and transparent (see s.577(1)). In dismissing an application based only on the originating Form F2 and subsequent correspondence I must be very careful not to visit an injustice upon the applicant. In this case Mr Bond has not said anything in his communications with the Commission that is consistent with him having completed the minimum employment period and he has chosen not to discontinue his application. The respondent should not be called upon to attend an interlocutory hearing before a member of the Commission to defend a claim where there is no reasonable prospect of an outcome other than the dismissal of the application.

• [26] For these reasons I am satisfied that Mr Bond'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 by the facility available in s.587(3)(a).

• [27] I have separately made an order to this effect (PR775126).

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