Jayden Barber v BSA Steelworks Pty Ltd

[2024] FWC 3135

[2024] FWC 3135

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jayden Barber
v

BSA Steelworks Pty Ltd

(U2024/10420)

DEPUTY PRESIDENT EASTON SYDNEY, 14 NOVEMBER 2024

Application for an unfair dismissal remedy – minimum employment period and unpaid application fee – dismissal under s.587(1)(c) at the Commission’s initiative - application has no reasonable prospects of success.

1. On 4 September 2024 Mr Jayden Barber made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

1. For the reasons that follow I am satisfied that Mr Barber’s application has no reasonable prospects of success and has not been made in accordance with the Act and that it is appropriate to dismiss the application. 

1. Mr Barber indicated in his Form F2 Unfair Dismissal Application that he commenced employment with BSA Steelworks Pty Ltd on 11 April 2024 and that his dismissal took effect on 3 September 2024. On the information provided by Mr Barber, he was employed for 4 months, 3 weeks and 2 days.

1. Further Mr Barber’s application was incomplete because Mr Barber did not pay the required fee or file a completed request to waive the fee.

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. In Mr Barber’s case it does not matter whether the respondent is a small business employer because he does not appear to have completed the lesser minimum employment period of 6 months.

1. Commission staff have tried to contact Mr Barber on the following dates:

·   10 September 2024 by telephone, SMS and letter;

·   19 September 2024 by telephone;

·   23 September 2024 by telephone; and

·   4 October 2024 by telephone.

1. Commission staff sought further information from Mr Barber about whether he had served the minimum employment period.

1. Mr Barber responded and provided evidence that confirmed his commencement date and dismissal date.

1. Mr Barber has been on notice of the likely consequences if he does not provide further information that supports his eligibility to make an application and of the consequences if the application fee is not paid or waived.

1. To date Mr Barber has not provided any further information that supports his eligibility to make the application and the fee remains outstanding.

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. The power under s.587 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] (Bond) and the cases cited therein).

Does Mr Barber’s application have any reasonable prospects of success?

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

1. The information provided by Mr Barber on his Form F2 application strongly indicates that he is not eligible to make an unfair dismissal application.

1. Mr Barber was invited to provide information that could show that he had in fact completed the minimum employment period. Mr Barber 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 facts that could change the outcome of his application.

1. On 11 October 2024 Mr Barber 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. Mr Barber responded, however did not provide any additional relevant information regarding whether he had served the minimum employment period.

1. I am satisfied that Mr Barber has had the opportunity to put his case for consideration on all matters material to the making of the decision to dismiss his application under s.587 (see Bond at [15]-[16]).

1. For these reasons I am satisfied that Mr Barber’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. In addition, Mr Barber’s application was not made in accordance with the Act (per s.587(1)(a)) because the prescribed fee (per s.395) has not been paid or waived. Section 587(1)(a) also confers a discretion on the Commission to dismiss Mr Barber’s application. 

1. I have separately made an order dismissing Mr Barber’s application (PR781220).

DEPUTY PRESIDENT

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