Kynan Shoesmith v Batteries on the Go Pty Ltd

[2024] FWC 1886

[2024] FWC 1886

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kynan Shoesmith
v

Batteries On The Go Pty Ltd

(U2024/6270)

DEPUTY PRESIDENT EASTON SYDNEY, 30 JULY 2024

Application for an unfair dismissal remedy

1. On 1 June 2024 Mr Kynan Shoesmith made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth). Mr Shoesmith advised in the Form F2 Unfair Dismissal Application that he commenced employment with Batteries On The Go Pty Ltd on 25 March 2024 and that his dismissal took effect on 30 May 2024.

1. On the information provided by Mr Shoesmith, he worked for Batteries On The Go Pty Ltd for 2 months and 5 days.

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. A longer minimum employment period, 12 months rather than 6 months, applies to employees of small business employers. In Mr Shoesmith’s case it does not matter whether Batteries On The Go Pty Ltd is a small business employer because he does not appear to have completed the lesser minimum employment period of 6 months

2. Commission staff sought further information from Mr Shoesmith about whether he had served the minimum employment period:

(a)On 5 June 2024 Commission staff called Mr Shoesmith and advised him that it appeared that he had not served the minimum employment period. Mr Shoesmith stated that he was unsure what he would like to do. Commission staff sent Mr Shoesmith the contact details of a legal community centre from whom he could seek legal guidance. Commission staff confirmed with Mr Shoesmith that if he did not respond further within 14 days that his matter may be dismissed without further notice.

(b)Later that day Commission staff emailed Mr Shoesmith confirming the information regarding the minimum employment period provided to him via telephone. The email directed Mr Shoesmith to file any documents/evidence to support his claim that he had served the required minimum employment period. The email also warned that if he did not contact the Commission within 14 days the application may be dismissed without further notice. An SMS notification was also sent to Mr Shoesmith.

(c)On 20 June 2024 Commission staff attempted to call Mr Shoesmith. However, he could not be reached. A voicemail message was left asking him to call the Commission by close of business 20 June 2024.

1. To date Mr Shoesmith 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, 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] and the cases cited therein).

Does Mr Shoesmith s application have any reasonable prospects of success?

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

1. The information provided by Mr Shoesmith on his Form F2 application strongly indicates that he is not eligible to make an unfair dismissal application. The Form F2 indicates that Mr Shoesmith was employed for approximately 2 months and 5 days.

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

1. On 10 July 2024 Mr Shoesmith was also specifically invited to provide submissions on why his matter should not be dismissed under ss. 587(1)(a) or 587(1)(c). An SMS was also sent to Mr Shoesmith telling his that an important email had been sent. Mr Shoesmith did not respond to this correspondence.

1. I am satisfied that Mr Shoesmith has been able to put his case for consideration on all matters material to the making of the decision to dismiss his application under s.587.

1. For these reasons I am satisfied that Mr Shoesmith’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. I have separately made an order to this effect (PR777133).

DEPUTY PRESIDENT

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<PR777132>