Melissa Donald v Arentz Group Pty Ltd

[2025] FWC 3045

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Melissa Donald
v

Arentz Group Pty Ltd

(U2025/12881)

DEPUTY PRESIDENT EASTON

SYDNEY, 10 OCTOBER 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 7 August 2025 Miss Melissa McDonald 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 Miss McDonald’s application has no reasonable prospects of success and should be dismissed.

In her Form F2 Unfair Dismissal Application Miss McDonald indicated that she commenced employment with Arentz Group Pty Ltd on 7 March 2025 and that her dismissal took effect on 21 July 2025. On the information provided by Miss McDonald, she was employed for 4 months and 2 weeks.

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 Miss McDonald the period of employment was less than 6 months.

Commission staff attempted to contact Miss McDonald on 11 August 2025 by telephone 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 Miss McDonald’s application have any reasonable prospects of success?

The Commission cannot consider the fairness of Miss McDonald’s dismissal until it is clear that she is eligible to make an unfair dismissal claim.

The information provided by Miss McDonald on her Form F2 application strongly indicates that she is not eligible to make an unfair dismissal application because she does not appear to have served the minimum employment period.

Miss McDonald had the opportunity to provide information that could show that she had in fact completed the minimum employment period. However Miss McDonald has not provided any information that is consistent with her having done so. Miss McDonald has also had the opportunity to put her 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 Miss McDonald’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 her 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 Miss Melissa McDonald on 7 August 2025 is dismissed.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

In the case of Melissa Donald v Arentz Group Pty Ltd, the applicant, Melissa Donald, sought an unfair dismissal remedy under the Fair Work Act 2009. Donald alleged that she was dismissed by Arentz Group Pty Ltd on 21 July 2025, after a period of employment commencing on 7 March 2025. The primary issue before the Fair Work Commission was whether Donald's application had reasonable prospects of success, particularly in light of her employment duration which was less than the statutory minimum required for eligibility to lodge such an application. The Fair Work Commission, led by Deputy President Easton, concluded that Donald's application was unlikely to succeed due to the insufficient period of employment.

The legal issues at hand revolved around the eligibility criteria for making an unfair dismissal claim, specifically whether Donald had met the minimum employment period stipulated in the Fair Work Act. The Act mandates that an individual must have completed a certain period of employment before they can lodge a claim for unfair dismissal. In this case, the minimum period was either six months or twelve months, depending on whether Arentz Group Pty Ltd qualified as a small business at the time of dismissal. Given that Donald's employment lasted for approximately four months and two weeks, it was clear she did not meet this requirement. The Commission was tasked with determining whether Donald could provide evidence to substantiate her eligibility despite the apparent insufficiency of her employment duration.

The Fair Work Commission, after considering the evidence and arguments presented by Donald, concluded that her application had no reasonable prospects of success. The Commission found that Donald had not provided any information that would support her eligibility for an unfair dismissal claim based on the minimum employment period. Furthermore, Donald had the opportunity to provide additional information or arguments to substantiate her claim, but she failed to do so effectively. The decision to dismiss the application was made under section 587 of the Fair Work Act, which allows the Commission to dismiss an application on its own initiative if it is evident that the application lacks reasonable prospects of success. The Deputy President noted that the power under section 587 should be exercised with caution, particularly when complex questions of fact or law are not involved.

The Fair Work Commission dismissed Melissa Donald's application for unfair dismissal, noting that she had not met the minimum employment period required by the Fair Work Act. The Deputy President ordered that the application made by Donald under section 394 of the Fair Work Act on 7 August 2025 be dismissed. The Commission's decision emphasized the importance of meeting statutory eligibility criteria before lodging an unfair dismissal claim and highlighted the necessity for applicants to provide adequate information to support their claims.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established