Annabella Twidale v Jodi Ann Pike

[2025] FWC 342

FAIR WORK COMMISSION

DECISION and ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Annabella Twidale
v

Jodi Ann Pike

(U2024/15776)

DEPUTY PRESIDENT EASTON

SYDNEY, 28 FEBRUARY 2025

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.

On 27 December 2024, Miss Annabella Twidale 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 Miss Twidale’s application has no reasonable prospects of success and should be dismissed.

Miss Twidale indicated in her Form F2 Unfair Dismissal Application that she commenced employment with Jodi Ann Pike on 27 July 2024 and that her dismissal took effect on 23 December 2024. On the information provided by Miss Twidale, she was employed for 4 months, 3 weeks and 5 days.

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 Miss Twidale the period of employment was less than 6 months.

Commission staff attempted to contact Miss Twidale on 2, 16 January and 7 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 Twidale’s application have any reasonable prospects of success?

The Commission cannot consider the fairness of Miss Twidale’s dismissal until it is satisfied that she is eligible to make an unfair dismissal claim.

The information provided by Miss Twidale on her Form F2 application strongly indicates that she is not eligible to make an unfair dismissal application because she does not appear to have served the minimum employment period.

Miss Twidale had the opportunity to provide information that could show that she had in fact completed the minimum employment period. However, Miss Twidale has not provided any information that is consistent with her having done so.

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

I am satisfied that Miss Twidale’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 her 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 Miss Annabella Twidale on 27 December 2024 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annabella Twidale filed an unfair dismissal claim against Jodi Ann Pike with the Fair Work Commission under section 394 of the Fair Work Act 2009. Twidale alleged that she had been dismissed on 23 December 2024, after being employed by Pike for approximately 4 months, 3 weeks and 5 days. The Fair Work Commission, under the leadership of Deputy President Easton, was tasked with determining whether Twidale’s application for relief from unfair dismissal had reasonable prospects of success.

The central legal issue before the Commission was whether Twidale’s employment period met the statutory minimum requirement to be eligible to lodge an unfair dismissal claim. Under sections 382 and 383 of the Fair Work Act, an employee must have completed a minimum employment period, either six months or twelve months, depending on whether the employer was a small business at the time of dismissal. Given Twidale's reported employment duration, it was evident that she had not met this minimum threshold. Furthermore, the Commission's attempts to contact Twidale to obtain further information on her employment period remained unanswered, reinforcing the lack of sufficient evidence to support her eligibility.

In deciding the matter, Deputy President Easton considered the statutory framework and relevant case law. The power under section 587 of the Fair Work Act, which allows the Commission to dismiss an application if it has no reasonable prospects of success, was exercised judiciously. The Deputy President concluded that Twidale had been provided with ample opportunity to substantiate her claim but had failed to provide any evidence that she had met the minimum employment period. The Commission's decision was grounded on the clear indication that Twidale's application lacked reasonable prospects of success due to her apparent ineligibility under the statutory criteria.

In light of the above, the Fair Work Commission dismissed Twidale's application for unfair dismissal. The order specified that the application made by Annabella Twidale on 27 December 2024 was dismissed under section 394 of the Fair Work Act 2009, reflecting the Commission's determination that there were no reasonable prospects of success for the claim.

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