Gabriela Gorgievski v Complete Credit Solutions Pty Ltd

[2025] FWC 2016

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Gabriela Gorgievski
v

Complete Credit Solutions Pty Ltd

(U2025/4761)

DEPUTY PRESIDENT EASTON

SYDNEY, 14 JULY 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 16 April 2025 Ms Gabriela Gorgievski 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 Ms Gorgievski’s application has no reasonable prospects of success and should be dismissed.

Ms Gorgievski indicated in her Form F2 Unfair Dismissal Application that she commenced employment with Complete Credit Solutions Pty Ltd on 30 September 2024 and that her dismissal took effect on 27 March 2025. On the information provided by Ms Gorgievski’s, she was employed for 5 months, 3 weeks and 6 days.

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 Ms Gorgievski’s the period of employment was less than 6 months.

Commission staff attempted to contact Ms Gorgievski on 23 April, 5 May and 11 June 2025 by telephone, SMS and email regarding 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 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 Ms Gorgievski’s application have any reasonable prospects of success?

The Commission cannot consider the fairness of Ms Gorgievski’s dismissal until it is clear that she is eligible to make an unfair dismissal claim.

The information provided by Ms Gorgievski on her Form F2 application strongly indicates that she is not eligible to make an unfair dismissal application because she does not appear to have served the minimum employment period.

Ms Gorgievski had the opportunity to provide information that could show that she had in fact completed the minimum employment period. However Ms Gorgievski has not provided any information that is consistent with her having done so. Ms Gorgievski has also had the opportunity to put her case for consideration on all matters material to the decision to dismiss the application under s.587 (see Bond at [15]-[16]).

I am satisfied that Ms Gorgievski’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 her application on the Commission’s own initiative using the facility available in s.587(3)(a). I make the following order:

A.The application under s.394 of the Fair Work Act 2009 (Cth) made by Ms Gabriela Gorgievski on 16 April 2025 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, Gabriela Gorgievski, filed an unfair dismissal claim with the Fair Work Commission against Complete Credit Solutions Pty Ltd under section 394 of the Fair Work Act 2009. The dismissal in question occurred on 27 March 2025, after Ms Gorgievski had been employed for approximately five months, three weeks, and six days, starting on 30 September 2024. The primary legal issue the Fair Work Commission had to address was whether Ms Gorgievski was eligible to make such a claim, given the statutory requirement of a minimum employment period.

The eligibility for an unfair dismissal claim hinges on the minimum employment period stipulated in sections 382 and 383 of the Fair Work Act 2009. These sections outline that an employee must have completed a minimum employment period of either six months or twelve months before being eligible to lodge an unfair dismissal claim. In Ms Gorgievski's case, the duration of her employment fell short of the required six-month period. Despite multiple attempts by the Commission staff to contact her for clarification, Ms Gorgievski did not provide any information to substantiate that she had met the minimum employment requirement. The Commission found that there were no reasonable prospects of success for Ms Gorgievski’s application due to her ineligibility based on the information available.

In reaching its decision, the Fair Work Commission considered the provisions of section 587, which allows the Commission to dismiss an application on its own initiative if there are no reasonable prospects of success. The Commission noted that the statutory power under section 587 should be exercised judiciously, especially when the matter does not involve complex questions of fact or law. The decision was made after ensuring that Ms Gorgievski had a fair opportunity to present her case. The Commission concluded that Ms Gorgievski's application lacked reasonable prospects of success and was thus dismissed under section 587(1)(c) of the Fair Work Act 2009.

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