Michael Brown v McIntosh & Son

[2025] FWC 624

[2025] FWC 624

FAIR WORK COMMISSION

DECISION and ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Michael Brown
v

McIntosh & Son

(U2024/14457)

DEPUTY PRESIDENT EASTON SYDNEY, 28 FEBRUARY 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 3 December 2024 Mr Michael Brown made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

1. For the following reasons I am satisfied that Mr Brown’s application has no reasonable prospects of success and should be dismissed.

1. Mr Brown indicated in his Form F2 Unfair Dismissal Application that he commenced employment with Mcintosh & Son on 4 June 2024 and that his dismissal took effect on 3 December 2024. On the information provided by Mr Brown, he was employed for 5 months, 4 weeks and 1 day.

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 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 Brown the period of employment was less than 6 months.

1. Commission staff attempted to contact Mr Brown on 5, 18 and 13 December 2024 and 13 January 2025 by telephone, SMS and email regarding the Minimum Employment Period.

Section 587 – General Principles

1. 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 relevant provisions of s.587 are:

“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. 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.

1. Importantly, applicants must be given a fair opportunity to show that their application does in fact have some reasonable prospects of success.

Does Brown’s application have any reasonable prospects of success?

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

1. The information provided by Mr Brown 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.

1. Mr Brown had the opportunity to provide information that could show that he had in fact completed the minimum employment period. However, Mr Brown has not provided any information that is consistent with him doing so.

1. I am satisfied that Mr Brown has had the opportunity to put his case for consideration on all matters material to the making of the decision to dismiss his application under s.587 (see Bond at [15]-[16]).

1. I am satisfied that Mr Brown’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 using the facility available in s.587(3)(a). I make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Michael Brown on 3 December 2024 is dismissed.

DEPUTY PRESIDENT

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