s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - under s.587(1)(c) at the Commission's initiative for want of prosecution.

• [1] On 29 November 2024, Mr Jeff Nash made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

• [2] Portside Tyres & Auto Pty Ltd raised the jurisdictional objection that Mr Nash did not complete the minimum employment period. Sections 382 and 383 of the Fair Work Act 2009 require an Applicant to be 'an employee who has completed a period of employment with his or her employer of at least the minimum employment period'. The minimum employment period is 6 months if the former employer is not a small business. A small business is when the employer has fewer than 15 employees. In the case that an employer is a small business, the minimum employment period is 12 months.

• [3] Commission staff tried to contact Mr Nash on 7 and 28 February 2025 by email and SMS about this concern. Mr Nash has not responded to the Commission's correspondence.

• [4] Section 587 allows the Commission to dismiss an application on the Commission's own initiative in the early stages of the proceedings for want of prosecution. If an applicant's conduct or omissions show that they are no longer willing to participate in their own case the Commission is not required to persevere with the application (see Viavattene v Health Care Australia [2013] FWCFB 2532 at [39]).

• [5] I am satisfied that Mr Nash has had the opportunity to put a case for consideration on all matters material to the decision to dismiss the application under s.587. In the circumstances I am satisfied that the facility under s.587 can and should be engaged to dismiss Mr Nash's application. I make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Jeff Nash on 29 November 2024 is dismissed.

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