Aarron Burge v Progress Rail Australia Pty Ltd

[2025] FWC 623

FAIR WORK COMMISSION

DECISION and ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Aarron Burge
v

Progress Rail Australia Pty Ltd

(U2024/15328)

DEPUTY PRESIDENT EASTON

SYDNEY, 28 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 18 December 2024, Mr Aarron Burge 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 Burge’s application has no reasonable prospects of success and should be dismissed.

Mr Burge indicated in his Form F2 Unfair Dismissal Application that he commenced employment with Progress Rail Australia Pty Ltd on 26 June 2024 and that his dismissal took effect on 18 December 2024. On the information provided by Mr Burge, he was employed for 5 months, 3 weeks and 1 day.

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 Burge the period of employment was less than 6 months.

Commission staff attempted to contact Mr Burge on 24 December 2024, 13 January and 6 February 2025.by telephone, SMS and email regarding 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.

…

(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 Burge’s application have any reasonable prospects of success?

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

The information provided by Mr Burge 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 Burge had the opportunity to provide information that could show that he had in fact completed the minimum employment period. However, Mr Burge has not provided any information that is consistent with him having done so.

I am satisfied that Mr Burge 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 Burge’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:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Aarron Burge on 18 December 2024 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case of Aarron Burge versus Progress Rail Australia Pty Ltd involved an application by Mr Burge for an unfair dismissal remedy. Mr Burge alleged that his dismissal by Progress Rail Australia Pty Ltd on 18 December 2024 was unfair. The application was made to the Fair Work Commission under section 394 of the Fair Work Act 2009 (Cth). The Commission was required to decide whether Mr Burge's application had any reasonable prospects of success, particularly given the minimum employment period requirements stipulated in sections 382 and 383 of the Act.

The primary legal issue the Commission addressed was whether Mr Burge was eligible to make an unfair dismissal claim. Under the Fair Work Act 2009, a person is only eligible to make such a claim if they have completed a minimum employment period before their dismissal. This period is either 6 months or 12 months, depending on whether the employer was a small business at the time of the dismissal. The Commission noted that Mr Burge had been employed for 5 months, 3 weeks, and 1 day, which was less than the 6-month minimum requirement. Despite attempts by the Commission to contact Mr Burge for further information, he did not provide any evidence to support that he had met the minimum employment period.

The Commission considered section 587 of the Fair Work Act 2009, which allows for the dismissal of an application if it has no reasonable prospects of success. Given that Mr Burge's application for unfair dismissal was based on an incomplete employment period and there was no evidence to suggest otherwise, the Commission concluded that the application was unlikely to succeed. The Commission exercised its discretion under section 587(3)(a) to dismiss the application on its own initiative, ensuring that Mr Burge had a fair opportunity to present his case but ultimately finding that there were no reasonable prospects of success.

In conclusion, the Fair Work Commission dismissed Mr Aarron Burge’s application for unfair dismissal under section 394 of the Fair Work Act 2009. The decision was based on the lack of a reasonable prospect of success due to Mr Burge's employment period not meeting the statutory minimum requirement. The Commission found that Mr Burge had been given an adequate opportunity to provide evidence of his eligibility but had failed to do so. Consequently, the application was dismissed.

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