Brendan Plowman v Allcott Hire Pty Ltd

[2024] FWC 1682

[2024] FWC 1682

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Brendan Plowman
v

Allcott Hire Pty Ltd

(U2024/3864)

DEPUTY PRESIDENT EASTON SYDNEY, 9 JULY 2024

Application for an unfair dismissal remedy

1. On 4 April 2024 Mr Brendan Plowman made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

1. Mr Plowman says that he was employed for about 5 months, and that his dismissal took effect on 2 April 2024. He noted that prior to this employment period he was employed for approximately 18 months before leaving on his own accord.

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. A longer minimum employment period, 12 months rather than 6 months, applies to employees of small business employers. In Mr Plowman’s case it does not matter whether Allcott Hire Pty Ltd is a small business employer because he does not appear to have completed the lesser minimum employment period of 6 months

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

(a)On 10 April 2024, Commission staff attempted to call Mr Plowman to confirm his actual start date, but Mr Plowman could not be reached. A voicemail was left asking him to call the Commission to confirm his start date.

(b)On 2 May 2024, Mr Plowman sent an email to the Commission stating that he worked for the respondent for 1.5 years and then left because its office is unorganised.

(c)On 6 May 2024 Mr Plowman called the Commission Helpline stating that he had not sought legal advice but would like to proceed with the application even though he had not met the Minimum Employment Period.

(d)On 6 May 2024, Commission staff called Mr Plowman to follow up on the details of his nominated representative. Mr Plowman again confirmed that he did not meet the minimum employment period but would like to proceed.

(e)On 13 May 2024, Commission staff attempted to call Mr Plowman to confirm whether he still wished to proceed with his application despite being told that he likely did not meet the minimum employment period, but Mr Plowman could not be reached. A voicemail was left asking him to call the Commission.

1. To date Mr Plowman 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, 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] and the cases cited therein).

Does Mr Plowman’s application have any reasonable prospects of success?

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

1. The information provided by Mr Plowman on his Form F2 application strongly indicates that he is not eligible to make an unfair dismissal application. The Form F2 indicates that Mr Plowman was employed for approximately 5 months.

1. Mr Plowman was invited by correspondence to provide information that could show that he had in fact completed the minimum employment period. Mr Plowman did not provide any response that was consistent with having served the minimum employment period, nor did any response raise the potential for any dispute about any facts that could change the outcome of her application.

1. On 18 June 2024 Mr Plowman was also specifically invited to provide submissions on why his matter should not be dismissed under ss. 587(1)(a) or 587(1)(c). An SMS was also sent to Mr Plowman telling him that an important email had been sent. Mr Plowman did not respond to this correspondence.

1. I am satisfied that Mr Plowman has been able to put his case for consideration on all matters material to the making of the decision to dismiss his application under s.587.

1. For these reasons I am satisfied that Mr Plowman’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 (PR776463).

DEPUTY PRESIDENT

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