Binit Tuladhar v Australian Liquor Marketers Pty Ltd Summary

[2025] FWC 547

FAIR WORK COMMISSION

DECISION and ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Binit Tuladhar
v

Australian Liquor Marketers Pty Ltd

(U2024/13255)

DEPUTY PRESIDENT EASTON

SYDNEY, 21 FEBRUARY 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 7 November 2024, Mr Binit Tuladhar 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 Tuladhar’s application has no reasonable prospects of success and should be dismissed.

Mr Tuladhar indicated in his Form F2 Unfair Dismissal Application that he commenced employment with Australian Liquor Marketers Pty Ltd on 29 April 2024 and that his dismissal took effect on 28 October 2024. On the information provided by Mr Tuladhar, he was employed for 5 months, 4 weeks and 1 day.

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 Tuladhar the period of employment was less than 6 months.

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

· 11 November 2024 by telephone, SMS and email; and
· 25 November 2024 by telephone.

Staff sought further information from Mr Tuladhar about whether he had served 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 Tuladhar’s application have any reasonable prospects of success?

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

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

I am satisfied that Mr Tuladhar 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 Tuladhar’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 have decided to dismiss Mr Tuladhar’s unfair dismissal application and make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Binit Tuladhar on 7 November 2024 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Binit Tuladhar lodged an application for unfair dismissal against Australian Liquor Marketers Pty Ltd under section 394 of the Fair Work Act 2009. He claimed to have been dismissed on 28 October 2024, after having been employed for less than six months. The application was considered by Deputy President Easton of the Fair Work Commission. The primary legal issue was whether Mr Tuladhar's application had any reasonable prospects of success, given his short duration of employment, which appeared to fall below the minimum employment period required for eligibility to claim unfair dismissal.

The Fair Work Act stipulates that an individual must have completed a minimum employment period to be eligible to make an unfair dismissal claim. This period can be either six or twelve months, contingent on whether the employer was classified as a small business at the time of dismissal. The Commission examined whether Mr Tuladhar had indeed completed the requisite minimum employment period and found that his employment duration was less than six months. Despite attempts by the Commission staff to seek additional information from Mr Tuladhar regarding his employment period, no such information was provided that would substantiate his eligibility for the claim. Consequently, the Commission concluded that the application lacked reasonable prospects of success, primarily due to Mr Tuladhar's failure to meet the minimum employment period requirement.

Based on the analysis, the Deputy President determined that Mr Tuladhar's application did not have reasonable prospects of success. The application was dismissed on the Commission's own initiative under section 587(3)(a) of the Act. This decision was grounded on the clear indication that Mr Tuladhar did not satisfy the eligibility criteria for an unfair dismissal claim due to insufficient employment duration. The Deputy President further noted that Mr Tuladhar had been given a fair opportunity to present his case but had failed to provide any information supporting his eligibility. Thus, the application was dismissed, and the order made was that Mr Tuladhar's unfair dismissal application, made on 7 November 2024, is dismissed.

Binit Tuladhar v Australian Liquor Marketers Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established