Shanti Ram Bhandari v RSL Care RDNS Limited (Bolton Clarke, Willandra Age Care)

[2024] FWC 2966

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Shanti Ram Bhandari
v

RSL Care RDNS Limited (Bolton Clarke, Willandra Age Care)

(U2024/9591)

DEPUTY PRESIDENT EASTON

SYDNEY, 25 OCTOBER 2024

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 18 August 2024 Mr Shanti Ram Bhandari 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 Bhandari’s application has no reasonable prospects of success and should be dismissed.

Mr Bhandari advised in the Form F2 Unfair Dismissal Application that he commenced employment with RSL Care RDNS Limited (Bolton Clarke, Willandra Age Care) on 6 June 2024 and that his dismissal took effect on 12 August 2024. On the information provided by Mr Bhandari, he was employed for 2 months and 6 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 Bhandari’s case it does not matter whether the respondent 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 Bhandari on the following dates:

· 22 August 2024 by telephone, SMS and letter; and
· 20 August 2024 by telephone.

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

Mr Bhandari responded, however did not provide any additional relevant information regarding whether he had served the minimum employment period.

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 Bhandari’s application have any reasonable prospects of success?

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

On 25 September 2024 Mr Bhandari was also specifically invited to provide submissions on why his matter should not be dismissed under ss. 587(1)(a) or 587(1)(c).

To date Mr Bhandari has not provided any further information or evidence in relation to the minimum employment period.

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

I am satisfied that Mr Bhandari 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 Bhandari’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 Bhandari’s application (PR780617).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Shanti Ram Bhandari applied to the Fair Work Commission for an unfair dismissal remedy against his employer, RSL Care RDNS Limited, trading as Bolton Clarke, Willandra Age Care. Bhandari claimed that he was dismissed on 12 August 2024 after being employed for 2 months and 6 days, starting on 6 June 2024. The Commission was required to determine whether Bhandari’s application for unfair dismissal had any reasonable prospects of success, given that he had not met the minimum employment period requirement under the Fair Work Act 2009. Section 383 of the Act stipulates that an employee must have been employed for a minimum period of 6 months to be eligible to make an unfair dismissal application unless the employer is a small business employer, in which case the requirement is 12 months. Bhandari did not appear to have met this requirement, as he had only been employed for less than 2 months and 6 days.

The Commission exercised its discretion under section 587 of the Act to dismiss Bhandari’s application on its own initiative. This power allows the Commission to dismiss an application if it has no reasonable prospects of success, in order to avoid protracted proceedings when the outcome is unlikely to be favourable to the applicant. The Deputy President considered that Bhandari had been given ample opportunity to provide evidence or information supporting his eligibility to make the application, but had not done so. The Commission found that it was appropriate to dismiss the application on the Commission’s own initiative, as the application lacked reasonable prospects of success due to the failure to meet the minimum employment period requirement. The Deputy President emphasised that the dismissal was made in accordance with procedural fairness, and that the Commission had to balance the need to avoid unnecessary proceedings with the rights of the applicant.

The Fair Work Commission dismissed Shanti Ram Bhandari’s unfair dismissal application under section 587(3)(a) of the Fair Work Act 2009. The dismissal was based on the finding that the application had no reasonable prospects of success due to Bhandari’s failure to meet the minimum employment period requirement. The Deputy President noted that Bhandari had been given sufficient opportunity to provide relevant information or evidence to support his application, but had not done so. The Commission issued an order dismissing the application, indicating that the application did not meet the statutory criteria for eligibility to pursue an unfair dismissal claim.

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