Barry Elsden v Jackbeedhams

[2024] FWC 2368

[2024] FWC 2368

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Barry Elsden
v

Jackbeedhams

(U2024/6401)

DEPUTY PRESIDENT EASTON SYDNEY, 3 SEPTEMBER 2024

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 4 June 2024, Mr Barry Elsden made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

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

1. Mr Elsden indicated in the Form F2 Unfair Dismissal Application that he commenced employment with Jackbeedhams on 14 May 2024 and that his dismissal took effect on the same day.

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. In Mr Elsden’s case it does not matter whether Jackbeedhams is a small business employer because he does not appear to have completed the lesser minimum employment period of 6 months.

1. Commission staff have tried to contact Mr Elsden on the following dates to seek further information about whether he had served the minimum employment period:

   ·   7 June 2024 by telephone and email;

   ·   27 June 2024 by telephone and letter; and

   ·   9 July 2024 by telephone.

1. Mr Elsden has been on notice of the likely consequences of his application remaining incomplete.

1. To date Mr Elsden has not provided any further information that supports his eligibility to make the application.

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).

Does Elsden’s application have any reasonable prospects of success?

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

1. The information provided by Mr Elsden on his Form F2 application strongly indicates that he is not eligible to make an unfair dismissal application. The Form F2 indicates that Mr Elsden was employed for one day.

1. Mr Elsden was invited to provide information that could show that he had in fact completed the minimum employment period and was also specifically invited to provide submissions on why his matter should not be dismissed under ss.587(1)(a) or 587(1)(c).

1. I am satisfied that Mr Elsden 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. For these reasons I am satisfied that Mr Elsden’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 by the facility available in s.587(3)(a).

1. I have separately made an order to this effect (PR778895).

DEPUTY PRESIDENT

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<PR778894>