Aaron Van Eps v WorldMark Pty Limited Summary

[2025] FWC 398

FAIR WORK COMMISSION

DECISION and ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Aaron Van Eps
v

WorldMark Pty Limited

(U2024/13601)

DEPUTY PRESIDENT EASTON

SYDNEY, 11 FEBRUARY 2025

Application for an unfair dismissal remedy – minimum employment period – dismissal under s.587(1)(c) at the Commission’s initiative - application has no reasonable prospects of success.

On 15 November 2024, Mr Aaron Van Eps made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

For the following reasons I am satisfied that Mr Van Eps’ application has no reasonable prospects of success and should be dismissed.

Mr Van Eps indicated in his Form F2 Unfair Dismissal Application that he commenced employment with WorldMark Pty Limited on 13 May 2024 and that his dismissal took effect on 28 October 2024. On the information provided by Mr Van Eps, he was employed for 5 and 1/2 months.

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 6 months or 12 months, depending on whether the respondent was a small business employer at the time of the dismissal. On the information provided by Mr Van Eps the period of employment was less than 6 months.

Commission staff tried to contact Mr Van Eps on the following dates:

· 19 November 2024 by email and SMS; and
· 3 December 2024 by telephone.

Staff sought further information from Mr Van Eps about whether he had served the minimum employment period.

Section 587 – General Principles

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. The relevant provisions of s.587 are:

“587 Dismissing applications
(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
(b)       the application is frivolous or vexatious; 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 or 773 on the ground that the application:
(a)       is frivolous or vexatious; or
(b)       has no reasonable prospects of success.

(3)       The FWC may dismiss an application:
(a)       on its own initiative; or
(b)       on application.”

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.

Importantly, applicants must be given a fair opportunity to show that their application does in fact have some reasonable prospects of success.

Does Mr Van Eps’application have any reasonable prospects of success?

The Commission cannot consider the fairness of Mr Van Eps’ dismissal until it is satisfied that he is eligible to make an unfair dismissal claim.

The information provided by Mr Van Eps 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.

Mr Van Eps had the opportunity to provide information that could show that he had in fact completed the minimum employment period. However Mr Van Eps has not provided any information that is consistent with having served the minimum employment period.

I am satisfied that Mr Van Eps 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]).

I am satisfied that Mr Van Eps’ 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 have decided to dismiss Mr Van Eps’ unfair dismissal application and make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Van Eps on 15 November 2024 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Aaron Van Eps lodged an unfair dismissal application with the Fair Work Commission against his former employer, WorldMark Pty Limited, under section 394 of the Fair Work Act 2009. Van Eps claimed that he was dismissed on 28 October 2024, after being employed for approximately five and a half months, starting on 13 May 2024. The Fair Work Commission was required to determine whether Van Eps's application had reasonable prospects of success and, if not, whether it could be dismissed under section 587(1)(c) of the Act on the Commission's own initiative.

The Commission considered the statutory requirement that an applicant must have completed a minimum employment period before being eligible to lodge an unfair dismissal application. Section 383 of the Act sets this period at either six or twelve months, contingent on whether the employer was a small business at the time of dismissal. Van Eps's Form F2 application indicated an employment duration of less than six months, suggesting he did not meet the eligibility criteria. Despite multiple attempts by Commission staff to obtain additional information from Van Eps to clarify his employment period, he did not provide any evidence to substantiate that he had completed the requisite minimum period. The Commission assessed whether the application could be dismissed under section 587(1)(c) for having no reasonable prospects of success, noting that such dismissals should only be made when it is very clear that success is unattainable. The Deputy President concluded that Van Eps had been given a fair opportunity to present his case but failed to provide any information indicating he met the eligibility criteria for the claim.

The Fair Work Commission found that Van Eps's application lacked reasonable prospects of success, as he did not appear to have satisfied the minimum employment period requirement for making an unfair dismissal claim. The Commission dismissed the application under section 587(1)(c) of the Fair Work Act on its own initiative, concluding that further proceedings were unnecessary. The order made by the Deputy President was to dismiss Van Eps's application under section 394 of the Fair Work Act 2009, made on 15 November 2024.

Aaron Van Eps v WorldMark Pty Limited

CaseChat Overview and Summary

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Background to the litigation

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