Scott Brian Melling v Binbirri Contracting Pty Ltd

[2025] FWC 1252

[2025] FWC 1252

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s 394—Unfair dismissal

Scott Brian Melling
v

Binbirri Contracting Pty Ltd

(U2025/2165)

DEPUTY PRESIDENT BEAUMONT PERTH, 2 MAY 2025

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.

1. On 25 February 2025, Mr Scott Brian Melling (the Applicant) made an unfair dismissal application to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth) (the Act).

1. For the reasons that follow, I am satisfied that the application has no reasonable prospects of success and should be dismissed.

1. The Applicant indicated in his application that he commenced employment with Binbirri Contracting Pty Ltd (the Respondent) in October (but did not specify the year) and that his dismissal took effect on 21 February 2025.  On the information provided by the Applicant, assuming that the Applicant intended to refer to October 2024, he was employed for between four months and four months and three weeks.

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. Commission staff have tried to contact the Applicant on the following dates:

·5 March 2025 by telephone and email;

·20 March 2025 by telephone;

·3 April 2025 by email and SMS; and

·23 April 2025 by email and SMS.

1. Commission staff sought further information from the Applicant about whether he had served the minimum employment period with the Respondent.

1. The Applicant has been on notice since 5 March 2025 of the likely consequences of not providing further information that supports his assertion that he is protected from unfair dismissal.  In correspondence dated 5 March 2025, the Applicant was informed that if the Commission did not hear from him, it was likely his application would be dismissed.

1. To date, the Applicant 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. 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).

Reasonable prospects of success

1. The Commission cannot consider the fairness of the Applicant’s dismissal until it is satisfied that he is protected from unfair dismissal.

1. The information provided in the application indicates that the Applicant does not appear to have served the minimum employment period.

1. The Applicant was invited to provide information that could show that he had, in fact, completed the minimum employment period.  The Applicant 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 facts that could change the outcome of his application.

1. On 3 April 2025 and 23 April 2025, the Applicant was also specifically invited to provide submissions on why his application should not be dismissed under ss 587(1)(a) or 587(1)(c) of the Act. No response was received.

1. I am satisfied that the Applicant 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. It follows that I am satisfied that the application has no reasonable prospects of success within the meaning of s 587(1)(c) of the Act, and that it is appropriate in the circumstances to dismiss the application on the Commission’s own initiative by 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 Scott Brian Melling on 25 February 2025 is dismissed.

DEPUTY PRESIDENT

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