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 8 July 2024 Mr Xavier Leck made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

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

• [3] Mr Leck advised in the Form F2 Unfair Dismissal Application that he commenced employment with Perisher Blue Pty Limited on 3 June 2024 and that his dismissal took effect on 8 July 2024. On the information provided by Mr Leck, he worked for Perisher Blue Pty Limited for 1 month and 5 days.

• [4] Sections 382 and 383 of the Act provide that a person can only make an unfair dismissal application if they had completed a minimum period of employment before dismissal. Section 383 of the Act defines the minimum employment period:

"383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer - 6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer - one year ending at that time."

• [5] In Mr Leck's case it does not matter whether Perisher Blue Pty Limited is a small business employer because he does not appear to have completed the lesser minimum employment period of 6 months.

• [6] Commission staff have tried to contact Mr Leck on the following dates:

• 11 July 2024 by letter and SMS;
• 31 July 2024 by telephone; and
• 22 August 2024 by telephone.

• [7] Commission staff sought further information from Mr Leck about whether he had served the minimum employment period.

• [8] Mr Leck has been on notice of the likely consequences if he does not provide further information that supports his eligibility to make the application.

• [9] To date Mr Leck has not provided any further information that supports his eligibility to make the application.

Section 587

• [10] The relevant provisions in s.587 of the Act are as follows:

(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.

• [11] Section 587 allows the Commission to dismiss an application on the Commission's own initiative in the early stages - subject to affording procedural fairness. Protracted proceedings can be avoided when there is no reasonable prospect of an outcome other than the dismissal of the application. The power under s.587 should be used with caution, particularly if the matter involves complex questions of fact or law. The power under s.587 is not available if there are live facts in issue that could affect the outcome of the proceedings (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [11]- [16] (Bond) and the cases cited therein).

Does Leck's application have any reasonable prospects of success?

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

• [13] The information provided by Mr Leck on his Form F2 application strongly indicates that he is not eligible to make an unfair dismissal application. The Form F2 indicates that Mr Leck was employed for a little more than 1 month.

• [14] On 20 September 2024, Mr Leck was also specifically invited to provide submissions on why his matter should not be dismissed under ss. 587(1)(a) or 587(1)(c).

• [15] I am satisfied that Mr Leck has had the opportunity to put his case for consideration on all matters material to the making of the decision to dismiss his application under s.587 (see Bond at [15]-[16]).

• [16] For these reasons I am satisfied that Mr Leck'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 his application on the Commission's own initiative by the facility available in s.587(3)(a).

• [17] I have separately made an order dismissing Mr Leck's application (PR780093).

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