Jason Pavy v The Fruit Dude Pty Ltd

[2025] FWC 3033

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Jason Pavy
v

The Fruit Dude Pty Ltd

(U2025/12111)

DEPUTY PRESIDENT EASTON

SYDNEY, 9 OCTOBER 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 24 July 2025, Mr Jason Pavy 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 Pavy’s application has no reasonable prospects of success and should be dismissed.

In his Form F2 Unfair Dismissal Application Mr Pavy indicated that he commenced employment with The Fruit Dude Pty Ltd on 29 January 2025 and that his dismissal took effect on 24 July 2025. On the information provided by Mr Pavy, he was employed for 5 months, 3 weeks and 4 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 Mr Pavy the period of employment was less than 6 months.

Commission staff attempted to contact Mr Pavy on 31 July and 2 September 2025 by telephone, email and SMS 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 Mr Pavy’s application have any reasonable prospects of success?

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

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

Mr Pavy had the opportunity to provide information that could show that he had in fact completed the minimum employment period. However Mr Pavy has not provided any information that is consistent with him having done so. Mr Pavy has also had the opportunity to put his 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 Mr Pavy’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 make the following order:

A.The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Jason Pavy on 24 July 2025 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The Fair Work Commission heard an application for an unfair dismissal remedy made by Jason Pavy against The Fruit Dude Pty Ltd. Mr Pavy alleged that he was unfairly dismissed by The Fruit Dude on 24 July 2025. The Commission was required to determine whether the application had any reasonable prospect of success, particularly given that Mr Pavy’s period of employment was less than the statutory minimum period for eligibility to make an unfair dismissal claim.

The legal issue before the Commission was whether Mr Pavy’s application had any reasonable prospect of success, in light of his employment period falling short of the minimum eligibility requirement. According to sections 382 and 383 of the Fair Work Act 2009, an applicant must have completed a minimum employment period before making an unfair dismissal claim. The minimum period is six months or twelve months, depending on the size of the employer. The Commission needed to determine whether Mr Pavy’s employment period met either of these thresholds. The Commission also considered whether it was appropriate to dismiss the application on its own initiative under section 587(1)(c) of the Act, given the absence of reasonable prospects of success.

The Deputy President found that Mr Pavy’s application had no reasonable prospect of success, primarily because he had not completed the minimum employment period. Mr Pavy had been employed for only five months, three weeks, and four days. He was unable to provide any information to suggest that he had in fact completed the minimum period. The Deputy President dismissed the application on the basis that there were no reasonable prospects of success, and that it was appropriate to dismiss the application on the Commission’s own initiative under section 587(3)(a) of the Act.

The Fair Work Commission ordered that the application made by Mr Jason Pavy under section 394 of the Fair Work Act 2009 on 24 July 2025 be dismissed.

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