Erioti Tiaon v Healthx Group Pty Ltd Summary

[2025] FWC 400

FAIR WORK COMMISSION

DECISION and ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Erioti Tiaon
v

Healthx Group Pty Ltd

(U2024/13781)

DEPUTY PRESIDENT EASTON

SYDNEY, 11 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 19 November 2024, Mr Erioti Tiaon 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 Tiaon’s application has no reasonable prospects of success and should be dismissed.

Mr Tiaon indicated in his Form F2 Unfair Dismissal Application that he commenced employment with Healthx Group Pty Ltd on 22 May 2024 and that his dismissal took effect on 1 November 2024. On the information provided by Mr Tiaon, he was employed for 5 months.

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 Tiaon the period of employment was less than 6 months.

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

· 22 November 2024 by telephone, email and SMS; and
· 4 December 2024 by telephone.

Staff sought further information from Mr Tiaon 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 Tiaon’s application have any reasonable prospects of success?

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

The information provided by Mr Tiaon on his Form F2 application strongly indicates that s/he is not eligible to make an unfair dismissal application because he does not appear to have served the minimum employment period.

Mr Tiaon had the opportunity to provide information that could show that they had in fact completed the minimum employment period. However Mr Tiaon has not provided any information that is consistent with having served the minimum employment period.

I am satisfied that Mr Tiaon’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 Tiaon’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 Tiaon on 19 November 2024 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case of Erioti Tiaon v Healthx Group Pty Ltd involved an unfair dismissal application made by Mr Tiaon to the Fair Work Commission (FWC) under the Fair Work Act 2009. Mr Tiaon claimed he was unfairly dismissed by Healthx Group Pty Ltd, an Australian employer, on 1 November 2024. According to the information provided, Mr Tiaon had been employed by the company since 22 May 2024, which amounted to a period of approximately five months. This case was heard by Deputy President Easton, who was tasked with determining whether the application had any reasonable prospects of success.

The primary legal issue in this case was whether Mr Tiaon was eligible to make an unfair dismissal application, given the minimum employment period stipulated under the Fair Work Act. Section 382 of the Act requires that an applicant must have completed a minimum employment period before being eligible to make an unfair dismissal claim. The minimum employment period is defined in section 383 as either six months or twelve months, depending on whether the employer was a small business at the time of the dismissal. The eligibility of Mr Tiaon to make such a claim hinged on whether he had completed the requisite minimum period of employment, which was not apparent from the information provided.

Deputy President Easton concluded that Mr Tiaon's application had no reasonable prospects of success because he had not provided any information that would indicate he had completed the minimum employment period of six months. The FWC staff had made multiple attempts to contact Mr Tiaon to request further information, but he had not responded. Under section 587 of the Act, the FWC has the authority to dismiss an application if it has no reasonable prospects of success, especially when the application is initiated by the Commission itself to avoid protracted proceedings. Given that Mr Tiaon had not provided any evidence to support his eligibility, the Deputy President found that it was appropriate to dismiss the application on the Commission's own initiative.

In light of the findings, the Deputy President dismissed Mr Tiaon's unfair dismissal application and made an order that the application under section 394 of the Fair Work Act 2009 made by Mr Tiaon on 19 November 2024 was dismissed.

Erioti Tiaon v Healthx Group Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established