Mr Timothy Liddiard v Now Furniture Australia Pty Ltd

[2024] FWC 2820

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Mr Timothy Liddiard
v

Now Furniture Australia Pty Ltd

(U2024/9322)

DEPUTY PRESIDENT EASTON

SYDNEY, 9 OCTOBER 2024

Application for relief from unfair dismissal – minimum employment period – dismissal under s.587(1)(c) at the Commission’s initiative - application has no reasonable prospects of success.

On 11 August 2024 Mr Timothy Liddiard made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

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

Mr Liddiard advised in the Form F2 Unfair Dismissal Application that he commenced employment with Now Furniture Australia Pty Ltd on 29 June 2024 and that his dismissal took effect on 10 August 2024. On the information provided by Mr Liddiard, he worked for Now Furniture Australia Pty Ltd for 1 month, 1 week and 5 days.

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.”

In Mr Liddiard’s case it does not matter whether Now Furniture Australia Pty Ltd is a small business employer because he does not appear to have completed the lesser minimum employment period of 6 months.

Commission staff have tried to contact Mr Liddiard on the following dates:

15 August 2024 by telephone and letter; and
4 September 2024 by telephone.

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

Mr Liddiard has been on notice of the likely consequences if he does not provide further information that supports his eligibility to make the application.

To date Mr Liddiard has not provided any further information that supports his eligibility to make the application.

Section 587

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.”

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. 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).

Does Mr Liddiard’s application have any reasonable prospects of success?

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

The information provided by Mr Liddiard on his Form F2 application strongly indicates that he is not eligible to make an unfair dismissal application. The Form F2 indicates that Mr Liddiard was employed for slightly longer than one month.

On 20 September 2024 Mr Liddiard was also specifically invited to provide submissions on why his matter should not be dismissed under ss. 587(1)(a) or 587(1)(c).

I am satisfied that Mr Liddiard 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]).

For these reasons I am satisfied that Mr Liddiard’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).

I have separately made an order dismissing Mr Liddiard’s application (PR780104).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Mr Timothy Liddiard applied to the Fair Work Commission for relief from unfair dismissal by Now Furniture Australia Pty Ltd, an application he lodged under section 394 of the Fair Work Act 2009. The Commission was asked to determine whether Mr Liddiard's dismissal was indeed unfair. The basis of Mr Liddiard's application was that his employment with the company was terminated without just cause or reason. However, the Commission found that Mr Liddiard's application was unlikely to succeed because he did not meet the minimum employment period required to make such an application.

The key legal issue before the Commission was whether Mr Liddiard had completed the minimum employment period as stipulated by the Fair Work Act. According to sections 382 and 383 of the Act, an employee must have completed a minimum employment period before being eligible to lodge an unfair dismissal application. For employers who are not small business employers, this period is six months, while for small business employers, it is one year. Given that Mr Liddiard's Form F2 application indicated he had been employed for approximately one month, he clearly did not meet the minimum requirement. Despite being given multiple opportunities to provide additional information to support his eligibility, Mr Liddiard failed to do so.

The Commission considered section 587 of the Act, which allows for the dismissal of an application if it has no reasonable prospects of success. The Deputy President determined that Mr Liddiard's application was unlikely to succeed because he did not meet the statutory requirement of the minimum employment period. This conclusion was reached after giving Mr Liddiard ample opportunity to present his case and provide any evidence that could potentially alter the outcome. Consequently, the application was dismissed on the Commission's own initiative under section 587(3)(a). The Commission made an order dismissing Mr Liddiard's application, indicating that the application had no reasonable prospect of success.

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