s 394 - Unfair dismissal

Application for relief from unfair dismissal - minimum employment period - dismissal under s 587(1)(c) at the Commission's initiative - application has no reasonable prospects of success.

• [1] On 25 February 2025, Ms Hayley Metz (the Applicant) made an unfair dismissal application to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth) (the Act).

• [2] The Applicant's application was not made in accordance with the Act (per s 587(1)(a)) because the prescribed fee (per s 367) has not been paid or waived. Further, it was apparent from her unfair dismissal application that the Applicant had not met the minimum employment period.

• [3] In respect of the payment of the prescribed fee, Commission staff contacted the Applicant on the following dates directing the Applicant to pay the application fee or apply for the application fee to be waived:

• 3 March 2025 by email;
• 4 March 2025 by SMS; and
• 13 March 2025 by email.

• [4] To date, the Applicant has yet to pay the application fee or apply for the application fee to be waived.

• [5] Turning to the issue of the minimum employment period, the Applicant indicated in her unfair dismissal application that she commenced employment with Edwards Group (the Respondent) on 30 September 2024 and that her dismissal took effect on 20 January 2025. Based on the information provided by the Applicant, she was employed for less than six months.

• [6] 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 one year, depending on whether the respondent was a small business employer at the time of the dismissal. As observed, on the information provided by the Applicant, the period of employment was less than 6 months.

• [7] Commission staff attempted to contact the Applicant on the following dates concerning the minimum employment period issue:

• 4 April 2025 by email and SMS;
• 14 April 2025 by email and SMS;
• 15 April 2025 by telephone; and
• 16 April 2025 by email and SMS.

• [8] Whilst the Applicant provided an email response on 15 April 2025, she did not address the minimum employment period issue and focused on the fairness of her dismissal.

• [9] On 15 April 2025, Chambers telephoned the Applicant and further explained the operation of the minimum employment period. The Applicant confirmed the information supplied on her unfair dismissal application but advised Chambers she wished to press her application, nonetheless. Chambers informed the Applicant that the Commission would now consider dismissing her unfair dismissal application under s 587 of the Act. Chambers emailed the Applicant on 16 April 2025, summarising the telephone discussion and directing the Applicant to file any submissions and materials she wished to have considered concerning the minimum employment period and the potential dismissal of her unfair dismissal application, by 4:00PM on 17 April 2025. At the time of writing no materials have been filed.

Section 587 - General Principles

• [10] 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.

• [11] 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.

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

Does the Applicant's application have any reasonable prospects of success?

• [13] The Commission cannot consider the fairness of the Applicant's unfair dismissal application, until it is clear that she is eligible to make such application.

• [14] The information provided by the Applicant in her unfair dismissal application and confirmed in her telephone discussion with Chambers on 15 April 2025, strongly indicates that she is not protected from unfair dismissal because she does not appear to have served the minimum employment period.

• [15] In emails from Chambers on 4 April, 14 April and 16 April 2025, the Applicant was directed to provide submissions regarding the minimum employment period and the potential dismissal of her unfair dismissal application by 9 April and 17 April 2025, respectively. The Applicant has had ample opportunity to provide information that could show that she had in fact completed the minimum employment period. However, the Applicant has not provided any information that is consistent with her having done so. Further, the Applicant has been provided the opportunity to put her case for consideration on all matters material to the decision to dismiss her unfair dismissal application under s 587 of the Act (see Bond at [15]-[16]).

• [16] I am satisfied that the Applicant'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 unfair dismissal application on the Commission's own initiative using the facility available in s 587(3)(a). I make the following order:

A. The application under s 394 of the Fair Work Act 2009 (Cth) made by Ms Hayley Metz on 25 February 2025 is dismissed.

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