s 394 - Unfair dismissal

Application for an unfair dismissal remedy - application dismissed pursuant to s 587(1)(c)

• [1] On 15 January 2025, the Commission received an application from Mr Martin Dane (the Applicant) under s 394 of the Fair Work Act 2009 (Cth) (the Act) asserting that he had been unfairly dismissed by Carey Mining Pty Ltd (the Respondent).

• [2] On 14 February 2025, the Respondent filed its response raising the jurisdictional objection that the Applicant's employment did not meet the minimum employment period.

• [3] On 24 February 2025, the Chambers of Deputy President Easton emailed the Applicant regarding the jurisdictional objection and noted that the Applicant may wish to discontinue his application or provide a statement explaining why he believed he met the minimum employment period by 4:00PM on 3 March 2025.

• [4] On 3 March 2025, the Applicant responded to Deputy President Easton's Chambers as follows:

I refer to your correspondence regarding my unfair dismissal claim against Carey Mining Pty Ltd.

I dispute the Respondent's assertion regarding my commencement date of employment.

I have attached a copy of email correspondence between myself and the then-project manager, Sean Fury. As you will see, while I mentioned submitting a resignation letter, Mr. Fury stated that he would hold off on submitting it until we had met and discussed the matter. During that meeting, he suggested that I take time off as unpaid leave and assured me that whenever I was ready, I could call him to resume my duties.

As I previously stated during the conciliation hearing, I should not have been placed on a probation period, as my employment with Carey Mining was continuous and was never interrupted in a way that would justify resetting my employment terms.

In light of this evidence, I respectfully request that my claim be reviewed, ensuring that the correct commencement date is taken into account.

• [5] The matter was referred to my Chambers on 24 March 2025. On 25 March 2025, directions issued which required the Applicant to file submissions and materials upon which he wished to rely relating to the minimum employment period by no later than 4:00PM on 2 April 2025 (the Initial Directions).

• [6] The Initial Directions put the parties on notice that compliance with the directions was essential and that there may be adverse consequences for a party should it fail to comply with the directions. The Initial Directions further drew parties' attention to ss 400A, 401, and 611 of the Act concerning costs and ss 399A and 587 concerning the dismissal of applications.

• [7] The Initial Directions noted the following with respect to the Applicant's correspondence of 3 March 2025, to the Chambers of Deputy President Easton:

1. If the Applicant intends to rely on the assertion that that his employment did not come to an end in or around mid-February 2023 (note the attached Email Correspondence 'Sean Fury'), the Applicant will bear the onus of adducing evidence to show that between the period of on or around 14 February 2023 until the 'Commencement Date'(2 July 2024) as outlined in the attached document 'DANE, Martin - Contract', the Applicant was on a period of authorised leave or absence that did not break the continuity of employment. It is observed that the Applicant stated he commenced employment on 25 June 2024 notwithstanding the 'Commencement Date' as outlined.

The email (Email Correspondence 'Sean Fury') that has been attached and forwarded to the Chambers of Deputy President Easton - in and of itself, is insufficient to show that the Applicant was on a period of authorised leave or absence in that period.

1. A probationary period is not the same as the 'minimum employment period' referred to in s 382(a) of the Fair Work Act 2009 (Cth). While an employer and employee may agree to exclude a probationary period, the 'minimum employment period' is unable to be excluded. A person will only be protected from unfair dismissal when the minimum employment period has been met

• [8] Having not received from the Applicant submissions, materials, or a request for an extension of time, directions concerning the Applicant's non-compliance issued at 5:04PM (AWST) on 2 April 2025 (the Non-compliance Directions).

• [9] The Non-compliance Directions required that the Applicant write to Chambers seeking an extension of time accompanied with reasons by 12:00PM on 4 April 2025. It was again noted that it was open to the Applicant to discontinue his application, should he choose to do so.

• [10] At 5:08PM on 2 April 2025, Chambers phoned the Applicant. The Applicant indicated that he had received the Initial Directions but thought he had already submitted all that was required in his Form F2 application and in his email to Deputy President Easton's Chambers dated 3 March 2025. Chambers explained that while parties may seek to rely on previously filed materials and correspondence in response to Directions, this needed to be communicated to Chambers and the Applicant would now need to respond to the non-compliance directions and explain his non-compliance. Further, Chambers explained to the Applicant the importance of re-reading the Initial Directions and resources attached. The Applicant indicated that he understood and would respond to the Non-compliance Directions by 12:00PM on Friday, 4 April 2025.

• [11] Having received no response from the Applicant, further non-compliance directions issued at 5:31PM on 4 April 2025 (the Further Non-compliance Directions). The Applicant was directed to inform Chambers by 4:00PM on Monday, 4 [sic] April 2025 whether he intended to file material in compliance with these Initial Directions or rely only on material filed to date. The Further Non-compliance Directions warned the Applicant that absent his response, the Commission would consider dismissing his application for failure to comply with directions. Further, the Applicant was informed that the material he had filed to date was insufficient to make out his case that he had met the minimum employment period.

• [12] On 7 April 2025 at 11:50AM, Chambers sent parties an email acknowledging the typographical error in the Further Non-compliance Directions and clarifying that the Applicant's response was due by 4:00PM that day, Monday, 7 April 2025.

• [13] Having received no response within this timeframe, directions issued on 8 April 2025 concerning dismissal of the application under s 587 of the Act (the s 587 Directions) which required the Applicant to file with Chambers submissions and materials upon which he wished to rely concerning s 587 of the Act by 4:00PM on 10 April 2025.

• [14] The Applicant did not file submissions or materials in accordance with the s 587 Directions.

• [15] In short, the Applicant has failed, at a minimum, to respond to three sets of directions. The Initial Directions drew the parties' attention to ss 399A and 587 of the Act (dismissal provisions) and emphasised that strict compliance with the directions was required.

• [16] The Commission's powers to dismiss an application are set out generally at s 587 of the Act. That section states:

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365, 536LU or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application:

• [17] Whenever exercising the power to dismiss an application under s 587, s 578 is relevant. It provides:

578 Matters the FWC must take into account in performing functions etc.

In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:

(a) the objects of this Act, and any objects of the part of this Act; and

(b) equity, good conscience and the merits of the matter; and

(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer's responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin.

• [18] The Commission has power to dismiss an unfair dismissal application on its own initiative. It is accepted that there is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where an applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at her or his initiative.[1]

• [19] Of course, in these types of applications, one is always guided by the premise that the power to dismiss a substantive application should only be exercised cautiously and sparingly, particularly where, as here, the Applicant has sought orders for relief for his alleged unfair dismissal.[2] That cautious approach is said to be warranted because ordering the dismissal of an application would result 'in the complete extinguishment of an applicant's right to have his/her application for relief orders under beneficial legislation, heard and determined according to law'.[3]

• [20] Having regard to the circumstances of this matter, I am satisfied that the application has no reasonable prospects of success. Since the matter was allocated to Chambers, the Applicant has done very little to prosecute his case. Whilst the Applicant emailed the Chambers of Deputy President Easton on 3 March 2025, the Applicant was informed that the materials filed were insufficient to make out his case that he had satisfied the minimum employment period.

• [21] Notwithstanding the allocation of this Commission's resources to assist the Applicant with his unfair dismissal application, including emails and a telephone call to remind the Applicant to promptly file the materials necessary to pursue his case or to respond to the potential dismissal of his unfair dismissal application, the Applicant has been unresponsive as detailed. The Applicant's non-compliance with the directions and lack of response to written and verbal communication from Chambers, in circumstances where he had not informed the Commission of any unavailability, have led me to this conclusion.

• [22] It follows that in the circumstances of this matter, I consider the Applicant's application has no reasonable prospects of success and, therefore, his application is dismissed pursuant to s 587(1)(c).

• [23] An Order[4] to this effect is issued concurrently.

[1] Viavattene v Health Care Australia [2013] FWCFB 2532, [39].

[2] Cole v Roy Hill Station Pty Ltd [2019] FWCFB 2925, [31].

[4] PR786210.

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