Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - jurisdiction - minimum employment period not met - dismissed pursuant to s.587(c).

• [1] On 7 May 2025 Mr Travis Smith (Applicant) made an application to the Fair Work Commission (Commission) for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Smith alleges he was unfairly dismissed by Plumb Now Pty Ltd on 6 May 2025.

• [2] Upon the matter being allocated to me, my Chambers emailed the parties regarding whether the Commission had jurisdiction to hear the application. The correspondence stated (original emphasis, hyperlinks omitted):

"Under the Fair Work Act 2009 (Act) an employee may make an application for an unfair dismissal remedy if they have completed a minimum employment period (MEP) of six months, or one year where the employer is a 'small business' (ie employs fewer than 15 employees). This requirement is strict - it is either met or not met and there is no ability to waive it.

In its Form F3 Employer Response, the Respondent states that at the time of Mr Smith's dismissal it had 10 employees, making it a small business employer (with less than 15 employees). If that is correct, the Applicant must have worked a minimum employment period (MEP) of 12 months to be protected from unfair dismissal (ss.382(a), 383(b) and 384 of the Act).

Both parties agree that Mr Smith commenced with the Respondent on 16 September 2024 and ended on 6 May 2025, being a period just short of 9 months.

The Deputy President's preliminary view is that the Commission does not appear to have jurisdiction to hear Mr Smith's application, as it would seem, based on the dates provided by both parties and the Employer's assertion it is a small business employer, that Mr Smith's employment does not meet the MEP of 12 months.

The Deputy President is now considering whether to dismiss Mr Smith's application under s.587(1)(c) of the Act on the basis that it has no reasonable prospects of success.

The Respondent is to provide to the Commission (by email to chambers.bell.dp@fwc.gov.au, copying in Mr Smith) an extract of Payroll statements or reports (however described) showing the number of employees for the Respondent at the date of dismissal. This material is to be provided by COB Friday 6 June 2025.

Should Mr Smith disagree with the information provided by the Employer, he is to provide his response - supported with any relevant material - by COB Wednesday 11 June 2025.

Subject to what is provided, the Deputy President will consider the next steps to be taken as appropriate, including dismissing the application if it is clear on the material that the Minimum Employment Period cannot be satisfied.

General information about unfair dismissal applications can be found on the Commission's website in the Unfair Dismissals Benchbook, and more specific information about the Minimum Employment Period can be found here."

• [3] In response the Respondent provided payroll information to Chambers, which confirmed the information provided in its Form F3 Response that it had 10 employees at the time of Mr Smith's dismissal.

• [4] There was no response from Mr Smith to this material, and on 13 June 2025 a further email was sent to the parties relevantly stating:

"Deputy President Bell has considered the payroll information provided by the employer (copy attached) and notes no contrary information has been provided.

On 3 June 2025, the Deputy President indicated his preliminary view is that the Commission does not appear to have jurisdiction to hear Mr Smith's application, based on the dates provided by both parties and the Employer's assertion it is a small business employer, that Mr Smith's employment does not meet the Minimum Employment Period of 12 months (see email below).

As there is no material before the Deputy President indicating the employer is not a small business employer, the Deputy President intends to dismiss the application based on that information. He expects to issue a decision, which will be provided to the parties and published on the Commission's website next week.

If there is any reason why Mr Smith considers the Deputy President should not proceed as indicated above, he should indicate why by no later than midday, Monday 16 June 2025.

• [5] There was no response from Mr Smith to this correspondence.

• [6] Section 587(1) of the Act provides the Commission with power to dismiss an application in accordance with its terms. Section 587(3) empowers the Commission to dismiss an application on its own initiative. Section 587(1) is 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."

• [7] I am satisfied on the material before me that the Respondent is a small business employer, that Mr Smith did not complete the minimum employment period of one year and therefore is not a person protected from unfair dismissal (ss.382(a), 383(b) and 384 of the Act) and the Commission does not have jurisdiction to deal with his application.

• [8] Having regard to the above matters, I am satisfied that I should exercise my discretion to dismiss the matter under s 587((1)(c) of the Act on the basis of no reasonable prospects of success. In doing so, I have had regard to the requirements of sections 577 and 578 of the Act.

• [9] An Order[1] to this effect will be issued with this Decision.

[1] PR788282.

Printed by authority of the Commonwealth Government Printer