Matthew Cameron v DMR Corporation Pty Ltd

[2024] FWC 1862

[2024] FWC 1862

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Matthew Cameron
v

DMR Corporation Pty Ltd

(U2024/5628)

DEPUTY PRESIDENT EASTON SYDNEY, 18 JULY 2024

Application for an unfair dismissal remedy

1. On 18 May 2024 Mr Matthew Cameron made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth). Mr Cameron advised in the Form F2 Unfair Dismissal Application that he commenced employment with DMR Corporation Pty Ltd on 17 May 2024 and that his dismissal took effect on the same day.

1. On the information provided by Mr Cameron, he worked for DMR Corporation for 1 day.

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 Cameron’s case it does not matter whether DMR Corporation 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 Cameron about whether he had served the minimum employment period:

(a)On 22 May 2024 Commission staff attempted to call Mr Cameron. Mr Cameron did not answer and a voicemail was unable to be left as the service only allowed a return phone number to be sent via SMS. The Commission helpline number was sent via SMS.

(b)Later that day Commission staff emailed Mr Cameron advising him that on the basis of the information provided in the Form F2, he had not served the minimum employment period. The email asked Mr Cameron 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 was also sent to Mr Cameron asking him to contact the Commission.

(c)On the same day an email was also sent advising Mr Cameron that he had not provided an email contact details for the Respondent. Mr Cameron was asked to provide the Respondent’s email contact details via return email, which he subsequently provided.

(d)By 3 June 2024 Mr Cameron had not responded to the Commission’s inquiry regarding the minimum employment period, so staff attempted to call Mr Cameron.  Mr Cameron could not be reached. A voicemail message was unable to be left and the Commission helpline number was again sent via SMS.

(e)On 1 July 2024 my Chambers emailed Mr Cameron providing a final opportunity for him to provide evidence of serving the minimum employment period or his application would be dismissed. He was asked to respond by 8 July 2024. An SMS was also sent to Mr Cameron telling him that an important email had been sent.

(f)On the same day Mr Cameron responded, stating “I was aware of the employment criteria but given circumstances felt the need to apply.” He then set out information regarding the fairness of the dismissal and prior period of employment and subcontracting he had engaged in with DMR Corporation but did not link these employment periods to the most recent employment period.

(g)On 8 July 2024 my Chambers emailed Mr Cameron seeking further information on the most recent period of employment to ascertain if it met the minimum employment period. Mr Cameron was asked to respond by 11 July 2024.

(h)On the same day Mr Cameron responded again agreeing that the minimum employment period had not been met but setting out his grievances with the ending of his employment.

1. On 12 July 2024 my Chambers sent a final email to Mr Cameron noting that the Commission did not have discretion to allow cases to continue where the jurisdictional requirements had not been met. Mr Cameron was provided a final opportunity to provide evidence of meeting to minimum employment period or discontinuing his application or his application would be dismissed.

1. To date Mr Cameron 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 Cameron’s application have any reasonable prospects of success?

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

1. The information provided by Mr Cameron on his Form F2 application strongly indicates that he is not eligible to make an unfair dismissal application as he was employed for approximately 1 day.

1. Mr Cameron was invited by correspondence to provide information that could show that he had in fact completed the minimum employment period. Mr Cameron 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. Between 1 July 2024 and 12 July 2024, Mr Cameron was also specifically invited to provide submissions on why his matter should not be dismissed under ss. 587(1)(a) or 587(1)(c). Mr Cameron responded, however did not provide any additional relevant information regarding whether he had served the minimum employment period.

1. I am satisfied that Mr Cameron 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 Cameron’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 (PR777057).

DEPUTY PRESIDENT

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