Kai Jewell v Madad Sales Pty. Ltd Summary

[2025] FWC 2251

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Kai Jewell
v

Madad Sales Pty. Ltd.

(U2025/5009)

DEPUTY PRESIDENT EASTON

SYDNEY, 1 AUGUST 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 23 April 2025, Mr Kai Jewell 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 Jewell’s application has no reasonable prospects of success and should be dismissed.

Mr Jewell indicated in his Form F2 Unfair Dismissal Application that he commenced employment with Madad Sales Pty. Ltd. on 26 February 2025 and that his dismissal took effect on 23 April 2025. On the information provided by Mr Jewell, he was employed for 1 month and 4 weeks.

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 Jewell the period of employment was less than 6 months.

Commission staff attempted to contact Mr Jewell on 28 April, 1 May, 12 May and 15 July 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 Mr Jewell’s application have any reasonable prospects of success?

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

The information provided by Mr Jewell 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 Jewell had the opportunity to provide information that could show that he had in fact completed the minimum employment period. However Mr Jewell has not provided any information that is consistent with him having done so. Mr Jewell 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 Jewell’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 Kai Jewell on 23 April 2025 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The Fair Work Commission considered an unfair dismissal application by Kai Jewell against Madad Sales Pty. Ltd. Mr Jewell claimed that he was dismissed on 23 April 2025 after only one month and four weeks of employment, commencing on 26 February 2025. The Commission was required to determine whether the application had reasonable prospects of success, specifically if Mr Jewell met the minimum employment period requirements outlined in the Fair Work Act 2009.

The Commission examined whether Mr Jewell's employment duration satisfied the eligibility criteria for an unfair dismissal claim. Sections 382 and 383 of the Fair Work Act 2009 stipulate that an employee must have been employed for a minimum period before being eligible to lodge such a claim. This period is either six or twelve months, contingent on whether the employer qualifies as a small business. Given Mr Jewell's employment period of less than six months, the Commission assessed whether he could demonstrate eligibility under any exceptional circumstances. Mr Jewell did not provide any evidence to suggest he had met the minimum employment period, despite multiple opportunities to do so.

The Commission concluded that Mr Jewell's application lacked reasonable prospects of success, primarily due to the insufficient employment period. The Deputy President, Easton, exercised the power under section 587(1)(c) of the Fair Work Act 2009 to dismiss the application on the Commission's own initiative. This decision was made considering the clear ineligibility of Mr Jewell based on the provided information and the lack of any evidence to the contrary. The Commission emphasized that such dismissals should only occur when it is evident that no other outcome is possible. Therefore, the application was dismissed, and no further proceedings were warranted.

Kai Jewell v Madad Sales Pty. Ltd

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