Ben Ryan v Coffs Harbour Bypass Team Summary

[2025] FWC 46

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ben Ryan
v

Coffs Harbour Bypass Team

(U2024/12741)

DEPUTY PRESIDENT BEAUMONT

PERTH, 6 JANUARY 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 24 October 2024, Mr Ben Ryan made an unfair dismissal application to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth) (the Act).

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

Mr Ryan indicated in his Form F2 Unfair Dismissal Application that he commenced employment with Coffs Harbour Bypass Team on 17 September 2024 and that his dismissal took effect on 1 October 2024. On the information provided by Mr Ryan, he was employed for 14 days.

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.”

Commission staff tried to contact Mr Ryan on the following dates:

·   30 October 2024 by telephone and email;
·   11 November 2024 by telephone, email and SMS; and
·   21 November 2024 by telephone.

Commission staff sought further information from Mr Ryan about whether he had served the minimum employment period.

Mr Ryan has been on notice since 30 October 2024 of the likely consequences if he does not provide further information that supports his eligibility to make the application.

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

Section 587

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.”

Section 587 of the Act 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 Mr Ryan’s application have any reasonable prospects of success?

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

The information provided by Mr Ryan 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.

I am satisfied that Mr Ryan 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]).

For these reasons, I am satisfied that Mr Ryan’s claim 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 his application on the Commission’s own initiative by the facility available in s 587(3)(a).

I have separately made an order dismissing Mr Ryan’s application (PR783031).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The Fair Work Commission addressed Mr Ben Ryan's unfair dismissal application against Coffs Harbour Bypass Team, initiated under section 394 of the Fair Work Act 2009. Mr Ryan, who had been employed by Coffs Harbour Bypass Team for 14 days, alleged that his dismissal on 1 October 2024 was unfair. The Commission found that Mr Ryan's application was unlikely to succeed and dismissed it on the basis that he did not meet the statutory minimum employment period required to bring such a claim.

The key legal issue before the Commission was whether Mr Ryan's application had any reasonable prospects of success. Under the Fair Work Act, a person must complete a minimum employment period before they can make an unfair dismissal claim. For employers who are not classified as small businesses, this period is six months. Mr Ryan's short employment duration of 14 days did not satisfy this requirement. Despite being notified of this potential barrier and given multiple opportunities to provide evidence supporting his eligibility, Mr Ryan did not furnish any information to substantiate his claim. The Commission concluded that without meeting the minimum employment period, Mr Ryan's application was fundamentally flawed.

The Deputy President, Beaumont, emphasised that the Commission could dismiss an application if it had no reasonable prospects of success, particularly if the applicant had been afforded procedural fairness. Given that Mr Ryan had ample opportunity to present his case and failed to provide any supporting evidence, the Commission determined that the application was without merit. The decision to dismiss the application was made under section 587(1)(c) of the Act, which allows the Commission to dismiss an application on its own initiative when it lacks reasonable prospects of success. The Commission exercised this power cautiously, ensuring procedural fairness was observed throughout the process.

The Commission issued an order dismissing Mr Ryan's application, citing the lack of reasonable prospects of success due to the failure to meet the statutory employment period. The dismissal was made under the authority granted by section 587(3)(a) of the Act.

Ben Ryan v Coffs Harbour Bypass Team

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established