Kiel Hughes v Austral Resources Australia Pty Ltd Summary

[2025] FWC 2747

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Kiel Hughes
v

Austral Resources Australia Pty Ltd

(U2025/4895)

DEPUTY PRESIDENT EASTON

SYDNEY, 12 SEPTEMBER 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 20 April 2025, Mr Kiel Hughes 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 Hughes’ application has no reasonable prospects of success and should be dismissed.

Mr Hughes indicated in his Form F2 Unfair Dismissal Application that he commenced employment with Austral Resources Australia Pty Ltd on 20 April 2025 and that his dismissal took effect on 20 April 2025. On the information provided by Mr Hughes’ he was employed for 1 day.

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 Hughes the period of employment was less than 6 months.

Commission staff attempted to contact Mr Hughes on 28 April and 15 May 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 Hughes’ application have any reasonable prospects of success?

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

The information provided by Mr Hughes 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 Hughes had the opportunity to provide information that could show that he had in fact completed the minimum employment period. However Mr Hughes has not provided any information that is consistent with him having done so. Mr Hughes 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 Hughes’ 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 Kiel Hughes on 20 April 2025 is dismissed.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

The Fair Work Commission heard an application by Kiel Hughes for an unfair dismissal remedy against Austral Resources Australia Pty Ltd. Hughes alleged that he was dismissed on 20 April 2025, the same day he commenced employment. The central legal issue before the Commission was whether Hughes' application had reasonable prospects of success, given that he had not satisfied the minimum employment period required by the Fair Work Act 2009. According to sections 382 and 383 of the Act, an applicant must have completed a minimum employment period, either six or twelve months, to be eligible to lodge a claim for unfair dismissal. The Commission found that Hughes had been employed for less than six months, as per his own admission in the Form F2 Unfair Dismissal Application. Despite attempts by Commission staff to contact Hughes for further information, no evidence was provided to substantiate that he had met the minimum employment period.

The Deputy President examined whether Hughes' application had reasonable prospects of success, given his failure to satisfy the eligibility criteria. Under section 587 of the Act, the Commission has the authority to dismiss an application on its own initiative if it is evident that there are no reasonable prospects of a successful outcome. This power should be exercised judiciously, particularly in matters involving complex factual or legal issues. However, in this case, the Deputy President found that it was clear Hughes did not meet the minimum employment period, and thus, there were no reasonable prospects of success for his claim. The Deputy President concluded that dismissing the application under section 587 was appropriate as Hughes had not provided any information to counter the presumption arising from his own application form and had failed to demonstrate any disputed facts that could influence the outcome.

The Commission dismissed Hughes' unfair dismissal application on the basis that he did not satisfy the minimum employment period required by the Act. This decision underscores the importance of meeting eligibility criteria before lodging a claim for unfair dismissal. The Deputy President's ruling was grounded in the clear evidence provided by Hughes himself, which indicated his ineligibility. Consequently, the application was dismissed, and no further proceedings would be entertained regarding the claim of unfair dismissal.

Kiel Hughes v Austral Resources Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established