Nathaniel Bunworth v BG & BC Spackman Family Trust

[2025] FWC 3029

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Nathaniel Bunworth
v

BG & BC Spackman Family Trust

(U2025/11696)

DEPUTY PRESIDENT EASTON

SYDNEY, 9 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 15 July 2025, Mr Nathaniel Bunworth 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 Mr Bunworth’s application has no reasonable prospects of success and should be dismissed.

In his Form F2 Unfair Dismissal Application Mr Bunworth indicated that he commenced employment with BG & BC Spackman on 5 February 2025 and that his dismissal took effect on 11 July 2025. On the information provided by Mr Bunworth, he was employed for 5 months and 6 days.

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 Bunworth the period of employment was less than 6 months.

Commission staff attempted to contact Mr Bunworth on 25 July, 7 August and 22 September 2025 by telephone, SMS 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 Mr Bunworth’s application have any reasonable prospects of success?

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

The information provided by Mr Bunworth 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.

Mr Bunworth had the opportunity to provide information that could show that he had in fact completed the minimum employment period. However Mr Bunworth has not provided any information that is consistent with him having done so. Mr Bunworth has also had the opportunity to put his 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 Mr Bunworth’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:

A.The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Nathaniel Bunworth on 15 July 2025 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Nathaniel Bunworth v BG & BC Spackman Family Trust, the applicant, Mr Nathaniel Bunworth, applied to the Fair Work Commission for an unfair dismissal remedy under section 394 of the Fair Work Act 2009. Mr Bunworth had commenced employment with BG & BC Spackman Family Trust on 5 February 2025 and was dismissed on 11 July 2025. He applied for relief on 15 July 2025. The Commission was required to determine whether the application had any reasonable prospects of success and, if not, to dismiss the application under section 587 of the Act. The Deputy President, Easton, decided that Mr Bunworth’s application should be dismissed as it was clear that he had not completed the minimum employment period required to be eligible to lodge an unfair dismissal claim. Mr Bunworth had been provided with multiple opportunities to demonstrate that he had completed the minimum employment period, but he had not provided any evidence to support this.

The key legal issue was whether Mr Bunworth’s application had any reasonable prospects of success. Under the Fair Work Act, an applicant must have completed a minimum period of employment before they can lodge a claim for unfair dismissal. The minimum employment period can be either 6 months or 12 months, depending on the size of the employer. Mr Bunworth’s Form F2 application indicated that he had been employed for less than 6 months. Despite attempts to contact Mr Bunworth and provide him with the opportunity to provide evidence that he had completed the minimum employment period, he did not provide any evidence to support this. As such, it was clear that Mr Bunworth did not meet the eligibility criteria to lodge a claim for unfair dismissal.

The Deputy President concluded that the application had no reasonable prospects of success and was therefore appropriate to be dismissed under section 587 of the Act. The Commission dismissed Mr Bunworth’s application for an unfair dismissal remedy. This decision was made on the basis that it was clear that Mr Bunworth did not meet the minimum employment period requirement and that he had not provided any evidence to support his claim that he had. The Deputy President noted that the power under section 587 should be used with caution and only when it is very clear that there are no reasonable prospects of success. In this case, it was clear that Mr Bunworth’s application did not have any reasonable prospects of success.

The Fair Work Commission dismissed Mr Bunworth’s application for an unfair dismissal remedy. The Deputy President found that it was clear that Mr Bunworth had not completed the minimum employment period required to be eligible to lodge a claim for unfair dismissal. Mr Bunworth had been provided with multiple opportunities to provide evidence that he had completed the minimum employment period, but he did not provide any evidence to support this. As such, the application was dismissed under section 587 of the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established