Daniel Brown v The Trustee for Lawless Middle Pub Management Discretionary Trust

[2024] FWC 1689

[2024] FWC 1689

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Daniel Brown
v

The Trustee For Lawless Middle Pub Management Discretionary Trust

(U2024/3817)

DEPUTY PRESIDENT EASTON SYDNEY, 9 JULY 2024

Application for an unfair dismissal remedy

1. On 3 April 2024 Mr Daniel Brown made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth). Mr Brown advised in the Form F2 Unfair Dismissal Application that he commenced employment with The Trustee For Lawless Middle Pub Management Discretionary Trust on 3 November 2023 and that his dismissal took effect on 2 April 2024.

1. On the information provided by Mr Brown, he worked for The Trustee For Lawless Middle Pub Management Discretionary Trust for nearly 5 months.

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 Brown’s case it does not matter whether The Trustee For Lawless Middle Pub Management Discretionary Trust 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 Brown about whether he had served the minimum employment period:

(a)On 10 April 2024, Commission staff called Mr Brown to confirm that the minimum employment period did not seem to be met according to the information provided in his application. During this call, Commission staff also gave Mr Brown an overview of the General Protections jurisdiction and queried if Mr Brown wanted to discontinue his application as the minimum employment period had not been met. Mr Brown stated that he would still like to proceed with the application. Mr Brown was told that his application might be dismissed because he had not served the minimum employment period.

(b)On 10 May 2024, Commission staff emailed Mr Brown advising him that, on the basis of the information provided in the Form F2, he had not served the minimum employment period. The email asked Mr Brown to file any documents/evidence to support his claim that he had served the required minimum employment period. The email also warned that if he did not contact the Commission within 14 days the application may be dismissed without further notice.

(c)On 22 May 2024 Commission staff attempted to call Mr Brown but he could not be reached. A voicemail was left asking that he call the Commission to discuss his application.

(d)On 13 June 2024 Commission staff attempted to call Mr Brown but he could not be reached. A voicemail was left asking that he call the Commission to discuss his application.

1. To date Mr Brown 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 Brown’s application have any reasonable prospects of success?

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

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

1. Mr Brown was invited by correspondence to provide information that could show that he had in fact completed the minimum employment period. Mr Brown 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 Brown 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 Brown 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 Brown’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 (PR776482).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR776481>