s.394 - Application for unfair dismissal remedy

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 3 April 2025, Ms Emily Goldsworthy made an unfair dismissal application under s.394 of the Fair Work Act 2009 (Cth).

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

• [3] Ms Goldsworthy stated in her application that she commenced employment with Tara on 24 March 2025. At section 1.3 of her Form F2 Application, under 'effective dismissal date' she stated that she did not know the exact date of dismissal and did not provide any date, however as her Application was made on 3 April 2025, the date of dismissal was presumably at some point between 24 March and 3 April 2025.

• [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 Ms Goldsworthy, her period of employment was less than 6 months.

• [5] Commission staff attempted to contact Ms Goldsworthy on 8 April 2025 by telephone and left a voice message requesting that she call the Commission back regarding the minimum employment period. On 8 April 2025, a further SMS was sent to Ms Goldsworthy requesting that she call the Commission regarding her application. A further call was made on 16 April, and a voice message was left requesting that Ms Goldsworthy call the Commission. A final call was made on 23 April, and a voice message was left notifying Ms Goldsworthy that she should advise the Commission on how she would like to proceed with her application by the end of the day, otherwise her matter would likely be dismissed. Ms Goldsworthy did not respond to any of these calls or messages.

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.[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.

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

Does Ms Goldsworthy's application have any reasonable prospects of success?

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

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

• [11] I am satisfied that Ms Goldsworthy'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 Emily Goldsworthy on 3 April 2025 is dismissed.

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

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