Fair Work Act 2009

s.394 - Unfair dismissal

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 30 January 2025, Miss Cody Wearne made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

• [2] For the following reasons I am satisfied that Miss Wearne's application has no reasonable prospects of success and should be dismissed.

• [3] Miss Wearne indicated in her Form F2 Unfair Dismissal Application that she commenced employment with City Beach on 30 October 2024 and that her dismissal took effect on 25 January 2025. On the information provided by Miss Wearne, she was employed for 2 months, 3 weeks and 5 days.

• [4] 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 Miss Wearne the period of employment was less than 6 months.

• [5] Commission staff attempted to contact Miss Wearne on 30 January, 11 February and 21 February 2025 by telephone, SMS and email regarding the Minimum Employment Period.

Section 587 - General Principles

• [6] 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.

• [7] 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.

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

Does Wearne's application have any reasonable prospects of success?

• [9] The Commission cannot consider the fairness of Miss Wearne's dismissal until it is clear that she is eligible to make an unfair dismissal claim.

• [10] The information provided by Miss Wearne on her Form F2 application strongly indicates that she is not eligible to make an unfair dismissal application because she does not appear to have served the minimum employment period.

• [11] Miss Wearne had the opportunity to provide information that could show that she had in fact completed the minimum employment period. However Miss Wearne has not provided any information that is consistent with her having done so. Miss Wearne has also had the opportunity to put her case for consideration on all matters material to the decision to dismiss the application under s.587 (see Bond at [15]-[16]).

• [12] I am satisfied that Miss Wearne'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 her application on the Commission's own initiative using the facility available in s.587(3)(a). I make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Miss Cody Wearne on 30 January 2025 is dismissed.

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