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 20 February 2025, Mr Nathaniel Ngataki (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] For the following reasons I am satisfied that the Applicant's application has no reasonable prospects of success and should be dismissed.

• [3] The Applicant indicated in his Form F2 Unfair Dismissal Application that he commenced employment with Australian Laboratory Services Pty Ltd (the Respondent) on 5 September 2024 and that his dismissal took effect on 31 January 2025. On the information provided by the Applicant, he was employed for approximately four months and 26 days.

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

• [5] Commission staff attempted to contact the Applicant regarding the issue of the minimum employment period, on the following dates:

• 25 February 2025 by telephone, email, and SMS;
• 13 March 2025 by telephone;
• 17 March 2025 by telephone;
• 27 March 2025 by email and SMS; and
• 14 April 2025 by email and SMS.

Section 587 - General Principles

• [6] 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.

• [7] 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.

• [8] 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?

• [9] The Commission cannot consider the fairness of the Applicant's dismissal until it is clear that he is eligible to make an unfair dismissal claim.

• [10] The information provided by the Applicant on his Form F2 application strongly indicates that he is not eligible to make an unfair dismissal application because he does not appear to have served the minimum employment period.

• [11] The Applicant had ample opportunity to provide information that could show that he had in fact completed the minimum employment period. However, the Applicant has not provided any information that is consistent with him having done so. Further, emails to the Applicant from Deputy President Easton's Chambers dated 27 March 2025 and 14 April 2025 put the Applicant on notice that absent the Applicant addressing the minimum employment period, the Commission would consider dismissal of the application. On both occasions, the Applicant was invited to make any submissions he wished as to why the application should not be dismissed. The Applicant has had ample opportunity to put his case for consideration on all matters material to the decision to dismiss the application under s 587 (see Bond at [15]-[16]).

• [12] 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 his 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 Mr Nathaniel Ngataki on 20 February 2025 is dismissed.

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