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 20 January 2025, Ms Helen Georgia Estabillo made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

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

• [2] Ms Estabillo indicated in her Form F2 Unfair Dismissal Application that she commenced employment with Digitalise Pty Ltd on 9 August 2024 and that her dismissal took effect on 1 January 2025. On the information provided by Ms Estabillo, she was employed for 4 months, 3 weeks and 2 days.

• [3] 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 Estabillo the period of employment was less than 6 months.

• [4] Commission staff attempted to contact Ms Estabillo on 20 January, 3 February, 6 February, 19 February, 5 March, 11 March, 12 March and 13 March 2025 by telephone, SMS and email regarding the Minimum Employment Period.

Section 587 - General Principles

• [5] 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.

• [6] 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.

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

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

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

• [9] The information provided by Ms Estabillo on her Form F2 application strongly indicates that she is not eligible to make an unfair dismissal application because s/he does not appear to have served the minimum employment period.

• [10] Ms Estabillo had the opportunity to provide information that could show that she had in fact completed the minimum employment period. However Ms Estabillo has not provided any information that is consistent with her having done so. Ms Estabillo 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]).

• [11] I am satisfied that Ms Estabillo'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 Ms Estabillo on 20 January 2025 is dismissed.

Printed by authority of the Commonwealth Government Printer