Ben Wilson v Bistro 19 Summary

[2025] FWC 648

FAIR WORK COMMISSION

DECISION and ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Ben Wilson
v

Bistro 19

(U2025/571)

DEPUTY PRESIDENT EASTON

SYDNEY, 4 MARCH 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 16 January 2025, Mr Ben Wilson 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 Wilson’s application has no reasonable prospects of success and should be dismissed.

Mr Wilson indicated in his Form F2 Unfair Dismissal Application that he commenced employment with Bistro 19 on 1 July 2024 and that his dismissal took effect on 28 December 2024. On the information provided by Mr Wilson, he was employed for 5 months, 3 weeks and 6 days.

In addition, Mr Wilson’s application remains unpaid.

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 Wilson the period of employment was less than 6 months.

Commission staff attempted to contact Mr Wilson on 16, 17, 28 January and 7 February 2025 by telephone, SMS and email regarding the Minimum Employment Period and request for payment.

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 Wilson’s application have any reasonable prospects of success?

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

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

I am satisfied that Mr Wilson 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 Wilson’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 Ben Wilson on 16 January 2025 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Ben Wilson applied to the Fair Work Commission for an unfair dismissal remedy against Bistro 19, claiming that he was dismissed without valid reason or prior notice. The dismissal allegedly occurred on 28 December 2024, after he had been employed by Bistro 19 since 1 July 2024. However, the application was made on 16 January 2025 and remained unpaid. The Commission found that Mr Wilson had not completed the statutory minimum employment period of six months, and as such, he was ineligible to lodge an unfair dismissal claim. The Deputy President considered that the application had no reasonable prospects of success and dismissed it under section 587 of the Fair Work Act 2009.

The primary legal issue was whether Mr Wilson's application for unfair dismissal had any reasonable prospects of success. The eligibility to make an unfair dismissal claim is contingent upon having completed a minimum period of employment, as stipulated in sections 382 and 383 of the Fair Work Act 2009. The Commission examined whether Mr Wilson had met this requirement based on the information provided in his application. The Deputy President also considered the procedural requirements and the appropriate use of the Commission's power to dismiss applications under section 587 of the Act. The decision hinged on whether Mr Wilson's application had reasonable prospects of success, considering the lack of completion of the minimum employment period.

The Deputy President concluded that Mr Wilson's application did not have any reasonable prospects of success. The information provided by Mr Wilson indicated that he had not completed the statutory minimum employment period of six months, thereby rendering him ineligible to make an unfair dismissal claim. The Deputy President emphasised that the Commission could not consider the merits of Mr Wilson's dismissal until it was satisfied that he met the eligibility criteria. Additionally, Mr Wilson had been given multiple opportunities to provide evidence that he had in fact completed the minimum employment period, but he did not do so. The Deputy President determined that Mr Wilson's claim had no reasonable prospect of success and dismissed the application under section 587(3)(a) on the Commission's own initiative.

The Fair Work Commission dismissed Mr Wilson's application for unfair dismissal remedy against Bistro 19. The Deputy President found that Mr Wilson had not completed the statutory minimum employment period and, therefore, was ineligible to make an unfair dismissal claim. The Commission considered that the application had no reasonable prospects of success and dismissed it under section 587 of the Fair Work Act 2009. The decision underscores the importance of meeting the eligibility criteria for unfair dismissal claims and the Commission's power to dismiss applications that have no reasonable prospects of success.

Ben Wilson v Bistro 19

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established