Madeleine Landsberg v The Trustee for Fairfield Central Medical Practice Unit Trust

[2025] FWC 1166

[2025] FWC 1166

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s 394—Unfair dismissal

Madeleine Landsberg
v

The Trustee For Fairfield Central Medical Practice Unit Trust

(U2025/2186)

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 25 February 2025, Ms Madeleine Landsberg (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. 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 her application that she commenced employment with The Trustee For Fairfield Central Medical Practice Unit Trust (the Respondent) on 12 August 2024 and that her dismissal took effect on 6 February 2025.  On the information provided by the Applicant, she was employed for approximately five months, 3 weeks and 4 days.

1. 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 six months or one year, depending on whether the respondent was a small business employer at the time of the dismissal. On the information provided by the Applicant, the period of employment was less than six months.

1. Commission staff have tried to contact Ms Landsberg on the following dates:

·   3 March 2025 by email and SMS;

·   18 March 2025 by telephone;

·   27 March 2025 by email and SMS; and

·   14 April 2025 by email and SMS.

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

1. The Applicant responded to the Commission’s correspondence on 14 April 2025. However, in her response, The Applicant did not provide any additional relevant information regarding whether she had served the minimum employment period.

1. On 17 April 2025, the Applicant was directed by the Deputy President to address the issue regarding the minimum employment period by 23 April 2025.  In that same correspondence, the Applicant was notified that if the Commission did not hear from her, her application would be dismissed without further notice to her.  It follows that the Applicant has been on notice of the likely consequences if she does not provide further information that supports her eligibility to make the application.

1. To date, the Applicant has not provided any further information that supports her 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 of the Act 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 she is protected from unfair dismissal. 

1. The information provided in the application indicates that the Applicant has not met the minimum employment period and is therefore not protected from unfair dismissal. 

1. The Applicant was invited to provide information that could show that she 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 her application.

1. On 17 April 2025, the Applicant was also specifically invited to provide submissions on why her 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 her case for consideration on all matters material to the making of the decision to dismiss her application under s 587 (see Bond at [15]-[16]).

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 Ms Madeleine Landsberg on 25 February 2025 is dismissed.

DEPUTY PRESIDENT

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