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, Mr Exavier Whitnall made an unfair dismissal application under s.394 of the Fair Work Act 2009 (Cth).

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

• [3] Mr Whitnall stated in his application that he commenced employment with S & A Carpentry Group Pty Ltd on 29 November 2024 and that his dismissal took effect on 19 March 2025. The letter of termination attached to his application stated that S and A Carpentry Group Pty Ltd terminate 'your employment effective immediately' and was dated 19 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 the Applicant, his period of employment was less than 6 months.

• [5] Commission staff attempted to contact Mr Whitnall on 24 March 2025 by telephone and followed up with SMS text message, regarding the minimum employment period and incomplete sections of his application. No response was received from Mr Whitnall. The Commission attempted to call Mr Whitnall again on 11 April, leaving a voice message requesting that he call the Commission back, and then again on 17 April and 22 April 2025. On 6 June 2025, my Chambers emailed Mr Whitnall, requiring a response by 12 June 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 Mr Whitnall's application have any reasonable prospects of success?

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

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

• [11] I am satisfied that Mr Whitnall's claim has no reasonable prospect of success and that it is appropriate to dismiss his application. I make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Exavier Whitnall on 19 March 2025, is dismissed.

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

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