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 19 March 2025, Ms Emma Whitham-Richmond 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 Whitham-Richmond's application has no reasonable prospects of success and should be dismissed.

• [3] Ms Whitham-Richmond stated in her application that she commenced employment with Dovida on 25 November 2024 and that her dismissal took effect on 14 March 2025. The letter of termination attached to her application stated that Dovida did not intend to continue Ms Whitham-Richmond's employment beyond the probationary period and that her employment would end on 21 March 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 Whitham-Richmond her period of employment was less than 6 months.

• [5] Commission staff attempted to contact Ms Whitham-Richmond on 24 March 2025 by telephone and followed up with an email and SMS text message regarding the minimum employment period. On 26 March 2025, Ms Whitham-Richmond contacted the Commission and advised that she needed time to think about how she would like to proceed and that she would contact the Commission with her decision. Ms Whitham-Richmond was informed that should she wish to proceed with her application it would be allocated to a Member and likely dismissed, due to her not having met the minimum employment period. On 11, 17 and 22 April 2025, Commission staff attempted to contact Ms Whitham-Richmond by telephone. On 2 May 2025, my Chambers emailed Ms Whitham-Richmond requiring a response by 9 May 2025. No response has been received.

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 Whitham-Richmond's application have any reasonable prospects of success?

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

• [10] The information provided by Ms Whitham-Richmond 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 Whitham-Richmond'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 Emma Whitham-Richmond on 19 March 2025 is dismissed.

[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