Bailey Arman v Provac Australia Pty Ltd

[2025] FWC 1196

[2025] FWC 1196

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s 394—Unfair dismissal

Bailey Arman
v

Provac Australia Pty Ltd

(U2025/2424)

DEPUTY PRESIDENT BEAUMONT PERTH, 1 MAY 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.

1. On 3 March 2025, Mr Bailey Arman (the Applicant) made an unfair dismissal application to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth) (the Act).

1. For the reasons that follow, I am satisfied that the application has no reasonable prospects of success and should be dismissed.

1. The Applicant indicated in his application that he commenced employment with Provac Australia Pty Ltd (the Respondent) on 6 February 2025 and that his dismissal took effect on 28 February 2025.  On the information provided by the Applicant, he was employed for 22 days.

1. Sections 382 and 383 of the Act provide that a person can only make an unfair dismissal application if they had completed a minimum period of employment before dismissal. Section 383 of the Act defines the minimum employment period:

383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.

1. Commission staff have tried to contact Mr Arman on the following dates:

·6 March 2025 by telephone twice and email;

·20 March 2025 by telephone;

·4 April 2025 by email and SMS: and

·23 April 2025 by email and SMS.

1. Commission staff sought further information from the Applicant about whether he had served the minimum employment period with the Respondent.

1. The Applicant has been on notice since 4 April 2025 of the likely consequences if he does not provide further information that supports his eligibility to make the application.

1. To date, the Applicant has not responded.

Section 587

1. The relevant provisions in s 587 of the Act are as follows:

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.

1. Section 587 allows the Commission to dismiss an application on the Commission’s own initiative in the early stages – subject to affording procedural fairness. Protracted proceedings can be avoided when there is no reasonable prospect of an outcome other than the dismissal of the application. The power under s.587 should be used with caution, particularly if the matter involves complex questions of fact or law. The power under s.587 is not available if there are live facts in issue that could affect the outcome of the proceedings (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [11]-[16] (Bond) and the cases cited therein).

Reasonable prospects of success

1. The Commission cannot consider the fairness of the Applicant’s dismissal until it is satisfied that he is met the minimum employment period.

1. The information provided in the application indicates that the Applicant does not appear to have served the minimum employment period.

1. The Applicant was invited to provide information that could show that he had, in fact, completed the minimum employment period.  The Applicant did not provide any response.

1. On 4 April 2025 and 23 April 2025, the Applicant was also specifically invited to provide submissions on why his application should not be dismissed under ss 587(1)(a) or 587(1)(c). No response was received.

1. I am satisfied that the Applicant 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]).

1. It follows that I am satisfied that the application has no reasonable prospect of success within the meaning of s 587(1)(c) of the Act, and that it is appropriate in the circumstances to dismiss the application on the Commission’s own initiative by 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 Bailey Arman on 3 March 2025 is dismissed.

DEPUTY PRESIDENT

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