Exavier Whitnall v S & a Carpentry Group Pty Ltd Summary

[2025] FWC 1791

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Exavier Whitnall
v

S & A Carpentry Group Pty Ltd

(U2025/3310)

DEPUTY PRESIDENT O’NEILL

MELBOURNE, 25 JUNE 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 March 2025, Mr Exavier Whitnall made an unfair dismissal application under s.394 of the Fair Work Act 2009 (Cth).

For the following reasons I am satisfied that Mr Whitnall’s application has no reasonable prospects of success and should be dismissed.

Mr Whitnall stated in his application that he commenced employment with S & A Carpentry Group Pty Ltd on 29 November 2024 and that his dismissal took effect on 19 March 2025. The letter of termination attached to his application stated that S and A Carpentry Group Pty Ltd terminate ‘your employment effective immediately’ and was dated 19 March 2025.

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 the Applicant, his period of employment was less than 6 months.

Commission staff attempted to contact Mr Whitnall on 24 March 2025 by telephone and followed up with SMS text message, regarding the minimum employment period and incomplete sections of his application. No response was received from Mr Whitnall. The Commission attempted to call Mr Whitnall again on 11 April, leaving a voice message requesting that he call the Commission back, and then again on 17 April and 22 April 2025. On 6 June 2025, my Chambers emailed Mr Whitnall, requiring a response by 12 June 2025. No response has been received.

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 power under s.587 should be used with caution, particularly if the matter involves complex questions of fact or law.[1] An application should not be dismissed under s.587 unless it is very clear that there are no reasonable prospects of success and 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 Mr Whitnall’s application have any reasonable prospects of success?

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

The information provided by Mr Whitnall indicates that he is not eligible to make an unfair dismissal application because he was employed for less than six months.

I am satisfied that Mr Whitnall’s claim has no reasonable prospect of success and that it is appropriate to dismiss his application. I make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Exavier Whitnall on 19 March 2025, is dismissed.

DEPUTY PRESIDENT

[1] See generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [11]-[16].

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CaseChat Overview and Summary

Exavier Whitnall applied to the Fair Work Commission for an unfair dismissal remedy against S & A Carpentry Group Pty Ltd. Whitnall alleged that he was dismissed on 19 March 2025, less than four months after he commenced employment with the company on 29 November 2024. Whitnall argued that his dismissal was unfair, and he sought relief under section 394 of the Fair Work Act 2009. The central legal issue in this case was whether Whitnall's application for unfair dismissal had reasonable prospects of success. This hinged on whether Whitnall had completed the minimum employment period stipulated under the Fair Work Act. Specifically, section 382 of the Act requires an employee to have completed a minimum employment period to be eligible for an unfair dismissal claim. This period is six months unless the employer was a small business at the time of dismissal, in which case the period is 12 months. Whitnall's short tenure of less than six months made it questionable whether he met this threshold.

The Fair Work Commission considered whether Whitnall's application could proceed, given the short period of his employment. Under section 587 of the Fair Work Act, the Commission has the authority to dismiss an application if it is clear that the application has no reasonable prospects of success. This provision aims to avoid protracted proceedings where the outcome is evident. The Commission noted that it had made several attempts to contact Whitnall to provide him with an opportunity to address the insufficiency of his application. Despite these efforts, Whitnall did not respond, which led the Commission to conclude that there were no reasonable prospects of success for his application. The Deputy President found that because Whitnall had not met the minimum employment period requirement, he was ineligible to make an unfair dismissal claim, and thus, his application should be dismissed.

In light of the above, the Fair Work Commission dismissed Whitnall's application. The Deputy President concluded that Whitnall's application had no reasonable prospects of success and that it was appropriate to dismiss it. The formal order made by the Deputy President was that the application under section 394 of the Fair Work Act 2009, made by Exavier Whitnall on 19 March 2025, is dismissed. This decision underscores the importance of meeting the eligibility criteria for unfair dismissal claims and highlights the Commission's role in ensuring that proceedings are not prolonged unnecessarily.

Exavier Whitnall v S & a Carpentry 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