Kelly Robert Bolch v Undermine Industries

[2025] FWC 1197

[2025] FWC 1197

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s 394—Unfair dismissal

Kelly Robert Bolch
v

Undermine Industries

(U2025/2351)

DEPUTY PRESIDENT BEAUMONT PERTH, 1 MAY 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.

1. On 27 February 2024, Mr Kelly Robert Bolch (the Applicant) made an unfair dismissal application to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth) (the Act).

1. The Applicant’s application was not made in accordance with the Act (per s 587(1)(a)) because the prescribed fee (per s 367) has not been paid or waived. Further, it was apparent from his unfair dismissal application that the Applicant had not met the minimum employment period.

1. In respect of the payment of the prescribed fee, Commission staff contacted the Applicant on the following dates directing the Applicant to pay the application fee or apply for the application fee to be waived:

·     5 March 2025 by email and SMS;

·     6 March 2025 by SMS;

·     11 March 2025 by email;

·     18 March 2025 by telephone; and

·     23 April by telephone and SMS.  

1. In response to the telephone call from the Commission on 18 March 2025, the Applicant advised the Commission they would attend to the payment on that date.  That did not occur.

1. On 23 April 2025, the Commission again placed a call with the Applicant.  The Applicant advised that he was driving at the time, and he would call back in an hour.  That did not occur. 

1. At the time of writing, the application fee has not been paid, and the Applicant has not applied for the fee to be waived. 

2. Turning to the minimum employment period issue, for the reasons that follow, I am satisfied that the Application has no reasonable prospects of success and should be dismissed.

1. The Applicant indicated in his application that he commenced employment with Undermine Industries (the Respondent) on 14 August 2024 and that his dismissal took effect on 6 February 2025.  On the information provided by the Applicant, he was employed for five months, three weeks and two days.

1. Sections 382 and 383 of the Act provide that a person can only make an unfair dismissal application if 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 respect of the minimum employment period issue, Commission staff contacted the Applicant on the following dates:

·   5 March 2025 by telephone, email and SMS;

·   4 April 2025 by email and SMS; and

·   23 April 2025 by telephone, email and SMS.

1. Commission staff sought further information from the Applicant about whether he had served the minimum employment period with the Respondent.

1. The Applicant advised Commission staff in a telephone call on 5 March 2025 that he wished to check the exact dates of his commencement and dismissal.  As noted, the Applicant advised Chambers in a telephone call on 23 April 2025 that he was unable to talk and would call back in an hour.  The Applicant did not return Chambers’ call.

1. The Applicant has been on notice since 4 April 2025 of the likely consequences if he does not provide further information that supports his eligibility to make the application.

1. To date, the Applicant has not provided any further information that supports his eligibility to make the application.

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).

Reasonable prospects of success

1. The Commission cannot consider the fairness of the Applicant’s dismissal until it is satisfied that he is protected from unfair dismissal. 

1. The information provided in the Application indicates that the Applicant does not appear to have served the minimum employment period.

1. The Applicant was invited to provide information that could show that he had, in fact, completed the minimum employment period.  The Applicant 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 4 April 2025 and 23 April 2025, the Applicant was also specifically invited to provide submissions on why his application should not be dismissed under ss 587(1)(a) or 587(1)(c). No response was received.

1. I am satisfied that the Applicant 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]). This includes having been provided the opportunity to pay the requisite application fee or seek a waiver of the same.

1. It follows that I am satisfied that the Application has no reasonable prospect of success within the meaning of s 587(1)(c) of the Act, and that it is appropriate in the circumstances to dismiss the application on the Commission’s own initiative by 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 Kelly Robert Bolch on 27 February 2025 is dismissed.

DEPUTY PRESIDENT

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